NEWSLETTER T&P N°47 YEAR V

MAY 2011

NEWSLETTER
Trifirò & Partners Law Firm

Editorial
The May issue of our newsletter is dedicated to alternative dispute
resolution as replacements to the standard recourse to the judge,
and are analyzed from both the standpoint of employment law and
civil law. The issues addressed are that of arbitration in
employment disputes and mediation at civil law.
The recently renewed National Collective Agreement for
Commerce introduces the role of arbitration, also by way of collective
accord and will get soon to see whether such role will prove more
effective than the one introduced by the new employment regulation
package that came into force several months ago, which is still not up
and running anywhere.
The Focus feature of our Civil Law section, instead, deals with the
implications of the Act that introduces the role of mediation. The Act has
been submitted to the scrutiny of the Constitutional Court, which means
it might very well be thrown out before even coming into existence.
Our section on Employment Law opens up on the “Ruling of the
Month”, which examines a case of dismissal for absence beyond the
overall span of time on leave from work allowed at law, and
compounded by an over-long leave of absence. The Judge held that if
leave of absence is requested for a period inferior to the period agreed
upon by contract, such leave may not be extended. Our “Other
Rulings” section deals with a case involving public health (special
appointments vested in a medical director), a case involving the
CONTENTS responsibility of the employer for unlawful acts committed by his
employee and a case regarding tax-assessment notice.
✦ EDITORIAL The Civil Law section, dealing with the role of mediation, also covers
insurance cases and is followed by the “Information Brief”, which
✦ EMPLOYMENT LAW examines the remuneration of directors and top managers of quoted
companies,
✦ FOCUS 2
We wish you a profitable reading till next time!
✦ FIRM CASES 4
Stefano Beretta and the editorial staff: Stefano Trifirò, Marina
✦ CIVIL LAW, COMMERCIAL, Tona, Francesco Autelitano, Luca D’Arco, Teresa Cofano,
INSURANCE Claudio Ponari, Tommaso Targa and Diego Meucci

✦ FOCUS 6
This is an abridged and edited version in English of Trifirò &
✦ INFORMATION BRIEF 7 Partners newsletter. If you wish a full-length English translation,
please contact Stefano Trifirò: stefano.trifiro@trifiro.it or
✦ CONTACTS 8 newsletter@trifiro.it

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 NEWSLETTER T&P N°47 YEAR V
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Employment Law
Focus
ON THE CONCILIATORY CLAUSE IN THE NEW COLLECTIVE AGREEMENT
FOR COMMERCE SERVICES
By Paolo Zucchinali
The broad picture of employment dispute is being subjected to en brush strokes in the area of
collective accords, as already mentioned in the last issue of our newsletter. We focus our attention
here on the arbitration clause whereby the parties involved agree to entrust to the decision of
arbitrators the definition of future controversies.
The employment regulation innovations included in Act #183 of 4 November 2010, and designed to
defuse disputes by way of the introduction of the role of arbitration, has proved highly controversial.
Its first consequence was the signing by Confcommercio, Fsascat-Cisl (management and unions,
respectively), on 26 February 2011, of the new National Collective Agreement for Commerce.
Although the introduction of arbitration is its major innovation, its inclusion at the stage of negotiations is
not. Besides, one often overlooks the fact that art. 806 of the code of civil procedure, before the new set
of employment regulations and its famed clause, already provided for conciliatory arbitration of
employment disputes, though only where expressly provided for by collective accord (§2) and though
exclusive of all disputes with respect to unavailable rights (§1). The history of the clause is made clearer
when one realizes that the text of art. 806, code of civil procedure, in force until 2006 (Legislative Decree
2/2/2006 #40) barred the conciliation of disputes relating to art. 409 and 442 c.c.p., that is, arising from
employment contract disputes. Lawmakers now provide for the arbitration of all rights subject to dispute,
save those related to employment termination.
Art. 38-bis of the National Collective Agreement for Commerce and the “conciliatory clause”
As is well known, the subject matter of the clause here examined has had a bumpy ride and forced the
President of the Republic to intervene - with the famed statement of 31 March 2011 - to ensure that the
Bill sent back to the Lower House would not contain an overly lax clause that would give too much
leeway to change negotiation principles between employers and employees. The final version of Act
#183/2010, as approved and passed, states essentially that:
✦the contracting parties may stipulate conciliatory clauses that are in conformity with the arbitration
procedure as at art. 412 (in front of the conciliation commission) and 412-four (in front of the
extraordinary board of conciliation and arbitration);
✦arbitration may concerns subject matters pursuant to art 409, c.c.p.
✦both contractual parties may stipulate clauses as at art. 808, c.c.p., (conciliatory clauses) where
collective agreements or national bargaining accords are involved (art. 808, c.c.p. only referred to
accords without qualifications);
✦the clause must be certified and is otherwise null, and,to conform with the points raised by the
President of the Republic, the certification commissions shall ascertain at the time of the underwriting of
the conciliatory clause the effective will of the parties to stipulate such clause;

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 NEWSLETTER T&P N°47 YEAR V
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✦the clause may be underwritten only after the end of the qualifying period or, absent specific accord,
after thirty days;
✦all
disputes mentioned may be subject to arbitration save those arising from termination of employment
contract;
✦partiesmay be represented by their respective counsel or by a representative of the workers' or trade
union mandated to that effect.
Art. 38-bis of the National Collective Agreement for Commerce extends the ban conciliatory clauses
to sensitive matters - in addition to issues related to employment termination - such sexual
harassment, workplace bullying, occupational injuries, professional diseases and such other cases as
parental leave and children care leave.
The contracting parties have also excluded the stipulating of such clause for pregnant working women
and until the new born reaches one year of age. It is worth pointing out that the handling of the dispute
arbitration seems to fall exclusively to union organizations. Indeed, the conciliatory clause may stipulate
the mere handing over of the controversy to the arbitration board as at art. 38 of the same collective
agreement and and not, therefore, to other seats of arbitration mentioned in the package of new
employment regulations. Lastly, either or both parties may renounce the arbitration procedure until one
day before the first conciliatory hearing, by way of a written statement sent to the secretary of the Board.
As to the nature of the arbitration provided for in the new set of regulations, there is a consensus among
legal scholars that such procedure may only apply to four highly unusual cases. Collective bargains
underwritten by the more representative trade union or workers’ unions may benefit from any such
contractual freedom as is not subject to restrictions by lawmakers on that regard.
In respect of art. 38, of the National Collective Agreement for Commerce, parties expressly recognize that
the arbitration board applies to unusual cases, particularly in light of the provisions of art. 412, c.c.p., §3
and 4 with regards to the efficacy of art. 1372 and 2113, 4, c, of the civil code, and the impugning of
awards pursuant to art. 808-ter, c.c.p. The contracting parties also provide, still under art. 38, that
arbitration shall be activated in an interim fashion under such clauses as are at art. 38 bis, to be regulated
by art. 412-four, c.c.p. (conciliatory and arbitration board).
According to an interesting interpretation - that remains to be verified in the court room - art. 808 of the
code of civil procedure, and where it expressly authorizes conciliatory clauses for all controversies that
may fall within the contours of arbitration, should make the clause applicable every time a collective
agreement - in conformity with art. 412-three, c.c.p. - provides for arbitration.
As a result, the limits set to §9 of art. 31 of Act #183/2010 would apply exclusively - as expressly stated
by the clause - to individual conciliatory clauses that follow the procedural steps of arbitration under art.
412 and 412.four, c.c.p. Conversely, no restriction would apply to conciliatory clauses that follow
arbitration procedure as under art. 412-third c.c.p. (that is, indeed, those regulated by collective accord)
in cases where - upstream - collective accords authorize controversy arbitration.

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 NEWSLETTER T&P N°47 YEAR V
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Firm Cases
RULING OF THE MONTH
DISMISSAL FOR OVERREACHING OVERALL LEAVE OF ABSENCE TIME SPAN
ALLOWED
(Tribunal of Latina, 5 May 2011)

A recent decision of the Tribunal of Latina ruled against a claim of unfair dismissal filed by
en employee who had breached the overall span of time away from work allowed at law.
Such dismissal had been decided in particular because the breach was in violation of the
overall period of leave from work provided for by collective bargain agreement and after the
employee had benefited from a requested leave of absence for a period inferior to the
maximum provided by the collective agreement. Thereafter, the employee had submitted a
request to benefit from a further period of leave of absence - still within the maximum limits
of leave provided by collective agreement - which the company turned down.
The decision of the judge reaffirms the unchanged construction of the Court of Cassation
whereby the overreaching of the limits of tolerance of leaves of absence provided by
collective accord qualifies as sufficient condition for just cause dismissal, insofar as the law
does not require evidence by the employee of a justified objective motive or of supervening
impossibility in discharging one's tasks, nor of the impossibility to reassign the employee to
other tasks, without violating constitutional provisions or principles. The dismissal intimated
by the employer falls within the provisions under art. 2110 of the civil code, which have
supremacy, owing to their specific subject matter, over general rules regulating contract
termination both upon supervening partial impossibility to discharge one's tasks and
regulations restricting individual dismissal.
(Counsels: Vittorio Provera and Marta Filadoro)

OTHER RULINGS
EMPLOYER RESPONSIBILITY FOR WRONGDOINGS BY EMPLOYEE AND THIRD
PARRTY DAMAGE COMPENSATION
(Court of Appeal of Turin, 30 April 2011)
The former managing director of a company brought action against said company claiming that he had
received from the latter a fax that was the copy of a registered letter sent by him a few days before to the
company and on which an offensive handwritten phrase had been added. He also claimed he had
received the original copy of another one of his letters, contained in an envelope with the letterhead of the
company, and on which an injurious drawing had been made by hand. The plaintiff sued the company for
damage compensation, under the title of objective responsibility for an act committed by an employee
pursuant to art. 2049, civil code.
The company counter-claimed that the anonymity of the author of such untoward conduct rendered
inapplicable the article invoked and pointed out that, in any event, the responsibility of the employer
remains within the bounds of unlawful conducts by employees in the exercise of their remits.

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The Judge of first instance threw out the claim, holding - as had also been argued in the rejection the
claim in criminal responsibility, started after a complaint against such offensive conduct - that the case in
hand did not provide any full-proof evidence as to the identity of the employee(s) of the company and that
a more-likely-than-not approach, where it came down to singling out individual persons accused of
wrongdoing, was unwarranted.
The Court of Appeal upheld the sentence and stated that no evidence proved that the misconduct was
attributable to an employee of the company. It also reiterated that, pursuant to art. 2049, civil code, the
responsibility of the employer for wrongdoings committed by his employees presumes the existence of a
necessary nexus of opportunity between the wrongdoing and the relationship that exists between two
persons, in the sense that the tasks assigned the employee must have enabled or made possible or in
any way facilitated the conduct that caused damages. Moreover, as, in the case under examination, no
connection was established between the injurious acts and the activity of the company, let alone between
the respective parties involved in the civil action, the employer was exonerated from any responsibility.
(Counsels: Giorgio Molteni and Veronica Rigoni)

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 NEWSLETTER T&P N°47 YEAR V
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Civil, Commercial and

Insurance Law
Focus By Francesco Autelitano

CIVIL MEDIATION: NEW (AND OLD) DOUBTS ABOUT THE EFFICIENCY OF

LEGISLATIVE DECREE #28/2010

According to data published by the European Court of the Rights of Man, Italy ranks at the
bottom in terms of length of trials and was slapped about a quarter of all the sanctions inflicted
for breach of the right to a trial verdict within a reasonable period of time.
Can the provisions for civil mediation provided by the Legislative Decree #28/2010 prove to be
the right solution to the problem?
Lawmakers themselves harbour some doubts; its application has been put off by a year (from March
2010 to March 2011) only to be once again put off by another year, namely, 2012.
The provisions took heat from lawyers, in particular with regards to the obligation to try the avenue of
conciliation, the absence of provisions for technical assistance in all the procedures, the absence of
rules on the territorial competence of the mediator, the inadequacy of the qualifying tests that
determine the competence and impartiality of mediators.
The Judiciary has deemed the objections worth considering from a constitutional standpoint; The
Regional Administrative Court (TAR) of Lazio, with an ordnance dated 12 April 2011, #3202, has
requested the Judge of Laws to rule on the legitimacy arising in contrast with art. 24 and 77 of the
Constitution, in respect of art. 5 of Legislative Decree #28/2010 (which introduces for whomsoever
wishes to take legal action the obligation to try the avenue of mediation, failing which access to legal
action would be barred) and art. 16 of the same Decree (which regards the instances of mediation
from the viewpoint of the necessity to guarantee professional expertise and independence).
The two issues to be examined by the Constitutional Court are of substantial relevance, insofar as
the concern the legitimacy proper of the new provisions introduced. Indeed, the likelihood of a
positive outcome of a conciliatory proceeding depends essentially on the authoritativeness and
competence of the person appointed to that effect. Such requisites are indispensable to ensure that
the parties involved perceive the mediator as unbiased and impartial; similarly, it is of the essence
that the parties be counselled by lawyers whose technical competence and reasoning abilities are
instrumental to a positive outcome of the mediation.
Also, bearing in mind the length of legal actions, it is to be noted that the obligation to try the avenue
of conciliation compounds the time necessary to see if conciliation is possible to the time it takes for
a legal action to run its course, once the failure of conciliation renders the bringing of a judicial action
the only remedy left. The absence of such compelling qualities mediation requires as would be
conducive to swift and positive outcome of mediation makes it all the more likely that the time spent
in vain to comply with such obligation would end up by making remedial proceedings in this country
notoriously even longer than they already are.
The decision of the Constitutional Court will undoubtedly have far-reaching implications.

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 NEWSLETTER T&P N°47 YEAR V
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Information brief
By Vittorio Provera

REPORT ON REMUNERATION

Arguably, in the wake of some headline-grabbing stories that occurred in 2010 and in the first months of
2011 and that revealed to the public the outstanding golden handshakes granted top managers and
board directors of some major companies, the government's Legislative Decree 30 December 2010,
#259 has incorporated the recommendations 2004/913/EC and 2009/385/EC with respect to the
remuneration of directors of the board, general directors and senior executives with strategic
responsibilities in quoted companies.
In particular, Legislative Decree 24 February 1998 #58 (omnibus Act) now includes art. 123-three, titled
"Report on Remuneration", which lays down that joint-stock companies listed at the stock exchange shall
circulate among the public, at least 21 days before the annual general meeting, a report on remuneration.
Such report, approved by the Board of Directors or by the Overseeing Committee in the companies that
adopt the dual system shall have two parts: one part shall illustrate the remuneration policy with respect
to directors of the board, general directors and senior executives with strategic responsibilities, while a
second part shall itemize all forms of remuneration, inclusive of any type of compensation whatsoever
(golden parachute and all) in case of termination of relationship or of mandate.
The notes on financial statements should include such information on remuneration, compensation,
indemnities and such.

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