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NEWSLETTER T&P N°47 YEAR V !

MAY 2011

NEWSLETTER

Trifirò & Partners Law Firm

V ! MAY 2011 NEWSLETTER Trifirò & Partners Law Firm CONTENTS ✦ EDITORIAL ✦ EMPLOYMENT LAW

CONTENTS

EDITORIAL

EMPLOYMENT LAW

FOCUS 2

FIRM CASES 4

CIVIL LAW, COMMERCIAL,

INSURANCE

FOCUS 6

INFORMATION BRIEF 7

CONTACTS 8

TRIFIRÒ & PARTNERS A VVOCATI

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 responsibility of the employer for unlawful acts committed by his employee and a case regarding tax-assessment notice.

The Civil Law section, dealing with the role of mediation, also covers insurance cases and is followed by the “Information Brief”, which examines the remuneration of directors and top managers of quoted companies,

We wish you a profitable reading till next time!

Stefano Beretta and the editorial staff: Stefano Trifirò, Marina Tona, Francesco Autelitano, Luca D’Arco, Teresa Cofano, Claudio Ponari, Tommaso Targa and Diego Meucci

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

M ILAN ROME G ENOA TURIN TRENTO

NEWSLETTER T&P N°47 YEAR V !

PAGE 2

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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PAGE 3

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;

parties may 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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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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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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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.

Contacts

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Tel.: + 39 02 55 00 11

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Genoa

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Turin

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Trento

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Tel.: + 39 0461 26 06 37 Fax.: + 39 0461 26 44 41

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M ILAN ROME G ENOA TURIN TRENTO