NEWSLETTER T&P N°32 YEAR III

JANUARY 2010

NEWSLETTER
Trifirò & Partners Law Firm

Editorial
After the Highlights 2009 special that was published last December, our monthly
newsletter is now back and ushers in the year 2010 with a wealth of information
and some breaking news.

Firstly, after opening branches in Rome, Genoa and Turin our law firm has
now opened a branch in Trento, in association with Attorney-at-Law and former
firm member Barbara Fumai. Secondly, our legendary head office in via San
Barnaba, in Milan, is to expand further its premises through the acquisition of
additional space. The number of lawyers and legal consultants on the staff of the
practice has now reached the round total of 80, all of whom share the same spirit
of dedication to delivering on clients expectations and meeting the highest
standards of excellence. Let the year 2010 bear out such commitments.

The “Focus” section of this newsletter features an overview by partner Luca

D'Arco of the government's budgetary policy for the current year. The policy
outlined affects in particular employment regulations and welfare.

Our regular feature on Employment Law focuses on union rights issues, with
an important ruling of the Court of Cassation on the replacement of
workers on strike and two sentences respectively on the requisite of
nationwide representativeness (that is, the test an union must meet so as to
take legal action as party to a dispute) and on payment of union fees.

Thereafter, an article by partner Luca Peron examines agency relationships in the

light of the renegotiation of the collective agreement for industry and, in
particular, with regards to the issue of termination indemnity.

The section dedicated to Civil Law features a decision of the Court of

Cassation, which examines yet again the issue of the fragmentation of
CONTENTS: credit and rules that separate and distinct claims for sums flowing from a single
contractual undertaking are in breach of due conduct and good faith.
✦ EDITORIAL
The section on Insurance reports decisions on the activity of brokerage, non-
payment of premium and suspension of policy contract and, lastly, bank
✦ FOCUS 2
responsibility in contracts for safe boxes.
✦ EMPLOYMENT LAW Our “Information Brief” by partner Vittorio Provera examines the contribution
status for stock options as set forth in legislative Decree #112, 25/6/2008
✦ FIRM CASES 4 and in derogation to the principle of harmonization with the taxation status.

✦ CIVIL LAW, COMMERCIAL,
INSURANCE
✦ INFORMATION BRIEF 6
✦ CONTACTS 7
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

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 NEWSLETTER T&P N°32 YEAR III PAG. 2

Focus
By Luca D’Arco

EMPLOYMENT AND WELFARE: WHAT CHANGES IN 2010

The new budgetary policy adopted by the government on December 22, 2009 has come into force
January 1, 2010.

A number of changes in employment regulations regard, in particular, management of the social net,
incentives for the hiring of certain groups of workers, indemnities for work on projects, staff leasing,
occasional and ancillary work, as well as apprenticeship.

As regards the social net and for this year alone as an experiment, such jobs as were executed under the
co-ordinated and continuing contract scheme and on project, in the course of the two years preceding
unemployment, shall be also computed, for a maximum of 13 weeks, for the scope of fine-tuning contribution
requisites and ease eligibility to unemployment benefits.

✦ An incentive will be provided for the jobless not on unemployment benefits but with at least 35 years of
contribution. Also as an experiment and for this year alone, employers hiring a jobless aged over 50 shall pay only
10% of the contribution due. Where idled or unemployed workers with at least 35 years contribution are hired, the
incentive scheme shall be prolonged until retirement age but, in any event, not longer than 31/12/2010.

✦ Employers who shall hire on no-term contracts, without being held to it, workers who draw unemployment
benefits or benefits on idled time in construction industry shall be entitled to incentives equal to the indemnity
due the workers for the number of monthly benefits not drawn. To enjoy such incentives, the employer must not
have laid off workers with the same skills over the 12 months preceding the recruitment and must not have idled
workers.

✦ Incentives are also provided for job centers and special intermediaries who will step up measures to get back
to work differently abled people. In practice, a premium shall be versed for every such person going back on the
payroll.

As regards unemployment benefits, the new budgetary policy prolongs the measures adopted last year
concerning idled workers and workers on relocation lists.

✦ refinancing of extensions to 24 months of unemployment benefits for idled workers upon termination of activity

✦ continuation
of benefits for workers who were laid off or whose employment contracts have expired. Such benefits
are commensurate to relocation indemnity

✦ extension
of benefits for idled workers and relocation listed workers to commercial enterprises, travel and tourism
agencies with more than 50 employees and to security agencies with over 15 employees

✦ registration
on relocation lists until 31/12/2010 of workers laid off on fair objective cause also from enterprises with
less than 15 employees

✦ activation
of solidarity contracts (reduced work hours sharing scheme) also for enterprises with less than 15
employees

As regards workers with no job as of January 1, 2010, and who were under contracts on project before that date,
the government makes them eligible for benefits equal to 30% of their revenue the year before inside a maximum of
€4,000.00, on condition that such work on project was for a single employer, that revenues in 2009 ranged from
€5,000.00 and €20,000.00, that at least one monthly payment be made to the separate contribution scheme of

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 NEWSLETTER T&P N°32 YEAR III PAG. 3

Social Security, that al least three monthly payments were made to the separate contribution scheme of Social
Security in 2009 and that the worker has been out of work for at least two months.

The scheme known as staff leasing (supply of work on no-term contracting) is being reintroduced,
pursuant to Legislative Decree 276/03, and its range of application is being extended.

Already applicable in marketing industry, call centers and construction industry, staff leasing is now extended to
informatics services, cleaning and doorkeeping, goods and persons transportation, libraries, car parks and
museums, management consulting and all state and private services supplying care work for persons and families.
Such form of contract, moreover, may also envisaged by companies. Naturally, such scheme may not be used to
replace workers on strike or absent the updated report of evaluation on corporate hazard, though said scheme may
be applied as of now to replace workers on relocation list or absent and where initial period does not extend beyond
three months.

Occasional and ancillary work schemes are extended to public administration and, in particular, local
agencies.

Provisions for such contracts apply to all family businesses, to the young under 25 years of age, to pensioners in all
branches of business, part-time workers working for an employer other than the one already employing him/her, as
well as to such jobs as gardening, cleaning and maintenance of edifices, streets and monuments.

Lastly, the provision whereby productivity wages for revenues of up to €35,000.00 per year and for a
maximum of €6,000.00 are subject to solely 10% taxation has been prolonged, now inclusive also of
operative revenue before tax, paid vacation and leaves of absence not enjoyed.

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 NEWSLETTER T&P N°32 YEAR III PAG. 4

Employment Law
Firm Cases
RULING OF THE MONTH
WORK STOPPAGE AND RIGHTFUL PROTECTION OF EMPLOYER
(Court of Cassation, 16 December 2009, #26368)

In a case where anti-union practice, pursuant to art. 28 of the Statute of Workers, was the central issue, the
Court of Cassation had to rule on the replacement of workers on strike by other workers of the company
and, for the first time, had to hand down a decision on the concurrent presence of temp workers (now
known as supplied workers).
The principle reaffirmed by the Court states that under art. 41 of the Constitution the right to freedom of
economic initiative remains in force also in the course of a strike action – which right is also enshrined in the
Constitution under art. 40 – and that since at stake are rights of "equal dignity…the line drawn is to be
understood as reciprocal" and therefore the employer may rightfully entrust to other workers the tasks
normally performed by the workers on strike where the scope is to restrain the negative impact of the
stoppage.
Such right of the employer, however, must not be in breach of the standards protecting the workers. On that
score, the attitude of the Court of Cassation has wavered between an open approach holding that, in view of
corporate exigencies, replacement by other employees also occupying a higher position was lawful (see
Court of Cassation 9709/2002 and 20164/2007) and a more narrow and restrictive approach holding that
any assignment of workers to tasks inferior to their qualification, be it limited in time and infrequent as in the
case of a work stoppage, was in breach of art. 2103, civil code (which lays down that employees must
perform the tasks for which they have been hired or those falling under the higher grade in ranking which
they may have subsequently acquired) and, as such, unlawful (see Court of Cassation 12811/2009).
Now, on the basis of a more correct construction of art. 2103, civil code, whereby said article is meant to
protect the professional standing of the worker, and such standing may not be deemed injured in case of
brief reassignment "in particular moments of production activity…to tasks inferior to those of competence",
the Court of Cassation stated anew that it is lawful to substitute employees of a higher grade and
qualification for employees on strike. Also, the Court of Cassation threw out on the merit the decision of the
Court of Appeal of Venice which had ruled unlawful the concurrent employ of temp workers. The Court of
Cassation held, instead, that it was lawful where – as in the case at issue – the hire of temp workers had
been planned to meet peaks of activity before the strike and "reflected practical productive and
organizational exigencies of the enterprise".
(Counsel: Anna Maria Corna)

OTHER RULINGS
UNION CALL FOR NATIONAL STRIKE NOT ENOUGH TO LEND UNION NATIONAL STATURE
(Tribunal of Milan, 9 November 2009)
A trade union had made recourse against a decision pursuant to art. 28 of the Statute of Workers that had declared
said union shorn of active legitimacy. The company brought action, arguing by way of preliminary the absence of
active legitimacy of the trade union for failing to meet the test of nationwide representativeness pursuant to art. 28
mentioned earlier. The Tribunal of Milan confirmed the absence of nationwide representativeness but modified the
terms of the justification of the previous sentence, which had denied representativeness on the ground that the
union had not underwritten the collective agreement, a view in line with recent constructions of the Higher Court
(see, among others, Court of Cassation #212/2008; #520/2008; #19275/2008).

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The judge pointed out that being party to a collective agreement was not indispensable to prove nationwide
representativeness, but that, instead, it was necessary "to contend and then bring proof that one's activity effectively
and practically spreads across all parts of the country, or that it exercises, de facto, a trade union activity of national
importance", and the judge ruled out that such requisite could be satisfied by "a general aspiration to national
activity as expressed in the Statutes of the Trade Union", or by the fact that the union called a "national strike".
(Counsels: Marina Olgiati and Sara Lovecchio)

UNION DUES
(Court of Appeal of Venice, 14 May 2009)
The Court of Appeal of Venice handed down a decision on the issue of union contribution and qualified the nature of
the obligation for the employer to pay such contribution. The Court held that if contribution of union dues qualifies as
cession of credit the employer is not always in duty bound to pay such contribution as the excessive additional
burden that such contribution may entail constitutes valid ground to lift such obligation. Indeed, the additional costs
incurred by the employer are not justifiable on the basis of the principle of bona fide execution of the contract (art.
1375, civil code), also in view of the fact that the withheld dues would qualify as an integration to the employment
contract which, in such case, is not admissible at law or, absent, on the ground of usage and equity (art. 1374, civil
code). The Court of Appeal pointed out that, with regards to specific corporations, the dues withheld were of an
excessive magnitude (in particular, where the number of employees is high) and that "the employer may refuse to
comply and said conduct may not qualify as anti-union practice".
(Counsel: Paolo Zucchinali)

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 NEWSLETTER T&P N°32 YEAR III PAG. 6

Civil Law, Commercial

and Insurance
Information Brief
By Vittorio Provera

NEW TAXATION RULES FOR STOCK OPTIONS

Law decree #112, June 25 2008 (converted with modifications into Act #133, August 6 2008) has
abrogated the tax relief scheme that applied to stock options whereby, subject to observance
of certain conditions, and in the computing of revenues of salaried employees, non-
competition applied to the difference between the value of stock at time of assignment and the
price paid by the employee.

Such abrogation extinguishes the tax relief scheme whilst the difference between the market value of
stock at the time the right of option is exercised and the price paid by the employee still contributes
to the calculation of the revenues of salaried employees subject to personal income taxation (IRPEF).

The new tax rules should be applicable under the principle of harmonization of taxable income base and
social security base, also for the scope of social security. However, an apposite provision in law decree
#112/2008 stipulates that "revenues of salaried employees deriving from the exercise of stock option
plans" are excluded from taxable base for the purpose of contribution.

Moreover, not later than 11 December 2009, Social Security issued circular n° 123 which specifies that in
absence of a legal definition of stock options in the body of Italian laws, it is estimated that "the system of
tax exemption is applicable also to such stock plans not generalised as provide, subject to the
observance of certain conditions (for instance, fixing a bar date to the exercise of option, reaching set
levels of corporate performance, being an employee of the company at time the option is exercised), free
assignment of stock".

The new system is applicable to all stock assigned employees as from the coming into force of the
decree, that is, from 25 June 2008. Stock assigned before that date remain subject to the former tax
relief system applicable for the purpose of taxation to the sole difference between the value of the
stock at time of assignment and the price effectively paid by the employee.

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 TRIFIRÒ & PARTNERS LAW FIRM
Trifirò & Partners has its head office in Milan and branch offices in
Rome, Genoa, Turin and Trento. Founded in the sixties by Mr.
Salvatore Trifirò, it now numbers 80 professionals and staff-workers
coordinated by the Partners.
Trifirò & Partners is the foremost firm in Employment Law and it also

Design: Emanuela Zocchi

provides legal assistance in the main areas of Civil Law and, in
particular, in Company, Insurance, Commercial, Finance, Industrial and
Administrative Law.

The Firm advises major Italian and foreign corporations, and has a
network of qualified affiliates firms throughout Italy, Europe, Asia and
the United States. It also ensures on-spot assistance through its lawyers
everywhere in Italy and abroad.
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paper and in multi-media. The firm is the point of reference for
professional training, conference participation, the editing of articles for
major newspapers, specialised magazines, publications and books.

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