NEWSLETTER T&P N°42 YEAR IV

NOVEMBER 2010

NEWSLETTER
Trifirò & Partners Law Firm

Editorial
The November issue of our newsletter is the last for the year 2010 as, like the
previous years, our December issue will cover the highlights of the whole year,
which shall be mailed right after the festivities of the year's end. We wish to extend
our heartfelt thanks to all of our readership who express their interest and
appreciation by regularly reading us.
Our Employment Law section deals once again with the most important piece
of legislation this year, namely, the reform that modifies many aspects of labour
law. In the wake of the overviews published in the previous issues, we now look
more closely at the issue of work hours, daily rest time and violations with regard to
the status of the employment relationship. On that score, in particular, the Ministry
of Labour has released the first circular (circular n° 38, 12 November 2010)
providing explanations on the straightening out of employment relationships.
Our Focus article also examines the recent Legislative Decree #187, 12
November 2010 setting forth protection standards for workplace safety.
The “Ruling of the Month” examines an interesting case of regarding the
hypothesis of a so-called "un-technical" compensation between credit of the
employer and credit of the employee (in the case in hand, competence for
termination indemnity deferred salary and damage compensation for illicit conduct).
The “Other Rulings” section features a case of dismissal upon extinction of the
position, a sentence pertaining to the estimation of damage compensation upon
suspension from Complementary Benefits upon Idling Unemployment, and a ruling
on the subject matter of contributions and sanctions requested by Social Security
subsequent to the reinstatement, directed on Appeal, of an employee whose
CONTENTS dismissal had been allowed by the lower court.
Our Civil Law section reports on the coming into force (on 18 November 2010)
✦ EDITORIAL of the new provisions with respect to agents of financial instruments and credit
mediators, introduced by Legislative Decree #141, 13 August 2010. As the article
✦ EMPLOYMENT LAW makes clear there is a line drawn between these two types of activity that reflects
two distinct and separate professions. The Insurance section deals with the topic
✦ FOCUS 2 of civil responsibility, limits damage compensation, and statute of limitation for
remedial action.
✦ FIRM CASES 5
Our “Information Brief” examines the bill recently approved by the government
✦ CIVIL LAW, COMMERCIAL, designed to modify legislative Decree #231, 8 June 2001, regarding the
INSURANCE administrative responsibility of legal persons, companies, and associations also
deprived of legal representative. Enjoy your reading!
✦ FOCUS 6
Stefano Beretta and the editorial staff: Stefano Trifirò, Marina Tona,
Francesco Autelitano, Luca D’Arco, Teresa Cofano, Claudio Ponari,
✦ INSURANCE 7
Tommaso Targa and Diego Meucci
✦ INFORMATION BRIEF 7
This is an abridged and edited version in English of Trifirò & Partners
newsletter. If you wish a full-length English translation, please contact
✦ CONTACTS 8 Stefano Trifirò: stefano.trifiro@trifiro.it or newsletter@trifiro.it

TRIFIRÒ & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO WWW.TRIFIRO.IT
 NEWSLETTER T&P N°42 YEAR IV PAGE 2

Employment Law
Focus
RECENT CHANGES IN LABOUR LAW
By Luca D’Arco and Orazio Marano
In the previous issues of the newsletter we talked about the project to reform a number of
aspects of labour law and we dwelt on the major changes regarding fix-term contracts (see
Newsletter T&P n°40), as well as the new procedure to bring action against individual dismissals
(see Newsletter T&P n° 41).

The Official Gazette published on 9 November 2010 Act #183, 4 November 2010. In keeping
with our previous surveys, we shall examine briefly the changes introduced by the reform of
labour regulations, as well as the provisions approved with regard to workplace safety.

✦The new provisions regard the system of sanctions applicable to violations of regulations
on work hours. Administrative sanctions had already been revised under Legislative Decree
#112/2008 (converted into Act #133/2008), but such revision had been deemed inadequate and
elusive in interpretation, so much so that the Ministry of Labour had had to clarify a number of
points (see newsletter of October 2009), in particular with regard to repeat offenders of the same
statutory standard. Legislative Decree #112/2008 had, for example, reduced the amount of
pecuniary sanctions, but set out that the sanction, ranging from €25 to €100, applied to every
single employee and every single 24-hour period. In March 2009, the Ministry clarified, upon
request, that where the worker did not enjoy daily rest over several 24-hour periods, the violation
occurred as many times as there were periods with no rest enjoyed. Subsequently, in another
clarifications dated 19 October 2009, the Ministry conceded the possibility of a legal concurrence
in case of formal concurrence (homogeneous or heterogeneous) of administrative violations,
provided it was proven that the violation by the employer had occurred only once. In such case,
under art. 8. §1, Act #689/1981 “save otherwise established at law, whoever by a commission or
omission violates several provisions that are subject to sanctions provided therefore or commits
several violations of one of the provisions, is subject to the sanctions provided for the more serious
violation increased threefold”.

The reform of various aspects of labour law went back on that issue and rated the sanctions on
the basis of the number of employees involved and of the relevant period of said sanctions.

In the case where the number of weekly work hours exceeds the maximum (48 hours per
week in the relevant period), the reform has reduced the sanction anywhere between €100 and
€750, raising up to a minimum of €400 and a maximum of €1,500 (without possibility of reduction),
where violation affects more than 5 employees or where at least 3 relevant periods occurred as
under §3 and §4 of art, 4 of Labour Decree #66/2003 (that is, within a period of 4 months, which
may rise to 12 months under collective agreement).

TRIFIRÒ & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO WWW.TRIFIRO.IT
 NEWSLETTER T&P N°42 YEAR IV PAGE 3

Where the violation affects more than 10 employees or occurred over 5 relevant periods as under §3
and §4 of art, 4 of Labour Decree #66/2003 (that is, within a period of 4 months, which may rise to
12 months under collective agreement), the sanction jumps to anywhere between €1,000 and
€5,000 (with no possibility of reduction either).

In case of violation with regards to holidays, the reform applies a similar complex system of
pecuniary sanctions qualified by the number of employees affected the number of relevant periods
and may reach €4,500 where more than 10 employees are affected or absence of holidays was
repeated for at least 4 years. Such sanctions do not apply to economically dependent workers,
collaborators, workers carrying out assistance and care assignments, provided such works on
contract do not exceed 240 hours. On-going collaboration contracts or contracts on projects are
also changing, as the so-called economic dependency steps in. Yet, a ceiling has been fixed to the
possibility of damage compensation where the fully dependent nature of the employment relationship
has been ascertained. Such compensation may vary between a minimum of 2.5 monthly salary to a
maximum of 6 monthly salary retribution. The whole being subject to the provisions set forth under
art. 68 Act #604/1966 and the employer has accepted the stabilization plan whereby by 30/9/2008 a
regular permanent employment contract has been underwritten, or he ensures after 24/11/2010
(date of the coming into force of the labour law reform), the converting of an existing employment
contract into a permanent contract.

In case of violation of the regulations of the status of employment relationship, the reform,
with a view to fighting black economy, provides for a heavy sanction where regular permanent
employment contracts are un-registered, which leaves outside the range of sanctions other forms of
un-registered employment contracts, still subject to the application of the sanctions provided for
under art. 19 of Labour Decree #276/2003 (which enforces the so-called Biagi Act). The law applies
to both private enterprises and government agencies, but is exclusive of people doing home chores.

With a view to ferret out un-registered employment contracts, lawmakers have set forth that the
"maxi sanction" shall not apply – on the ground of the derogation expressly provided under art. 3, §4
of Act #183/2010 - where “obligation of contributions due previously complied with, prove in any
event the intention to not conceal the employment relationship, also where qualifications are
different”.

Sanctions for non declaring the existence of an employment contract are qualified according to
the typeof contract and may reach, in serious cases, anywhere between €1,500 and €12,000 for
each employee un-registered.

With regards to workplace health and safety, it is to be noted that Legislative Decree 12
November 2010 #187 provides, in particular, for the extension of the power of administrative
authority to determine accessory administrative sanctions where violations flowing from failure to
comply with preventive workplace health and safety standards.

Art. 9 of the above-mentioned Decree provides that, where violations of workplace health and safety
and prevention of hazard standards are serious or repeated, the instruments used and destined to
commit such violations may be confiscated by the administration, as well as the things that were the
products of such violations, also where no ordnance or injunction for payment has been issued.
Such new procedure is in derogation of the principle set forth at art. 20 Act #689/1981 whereby
lawmakers provided for administrative authority to apply administrative sanctions, penal and
accessory (consisting in the deprivation or suspension of entitlements and rights) only upon issuance
of ordnance or injunction, or upon sentencing.

TRIFIRÒ & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO WWW.TRIFIRO.IT
 NEWSLETTER T&P N°42 YEAR IV PAGE 4

As regards work-related stress risk, circular n° 15 of the Ministry of Labour dated 18 November 2010
mentions the approval by the workplace hygiene and safety permanent consultative Commission of
the criteria to evaluate work-related stress risk, namely, that they be “caused by a number of various
factors pertaining to the context and the contents of the tasks”.

Such criteria must be reported in the risk evaluation document destined to provide for the planning f
measures designed to eliminate or, at least, significantly reduce to the minimum the work-related
stress risk factor. On that score, the judges of competence have pointed out that non observance of
the procedure for self-certification that such risk evaluation document has been drafted (allowed for
small enterprises before Labour Decree #626/1994 and thereafter by the omnibus text on workplace
safety and health, Labour Decree #81/2008) qualified as a violation that triggered the cancellation of
the tax credit incentive that such enterprises enjoyed for additional hiring on permanent employment
contracts made between 1 October 2000 and 31 December 2003.

TRIFIRÒ & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO WWW.TRIFIRO.IT
 NEWSLETTER T&P N°42 YEAR IV PAGE 5

Firm Cases
RULING OF THE MONTH
"UN-TECHNICAL" COMPENSATION BETWEEN CREDIT OF THE EMPLOYER AND CREDIT
OF THE EMPLOYEE
(Tribunal of Milan, 8 October 2010)

An executive was dismissed upon the finding of facts of corruption uncovered by an investigation
conducted by the Public Prosecutor and for the purpose of which the executive had been remanded to
custody. Such facts of corruption were subsequently confirmed by an in-house investigation that
revealed a series of dubious transactions in his capacity as responsible for contract orders. Following a
court-issued injunction addressed by the executive to his employer and directing the payment of
employment termination indemnity (TFR) plus legal expenses, the employer sought action against the
injunction by requesting a setoff of the credit of the employee with his own compensation credit claim
against the employee, to be determined by the judge of the penal court in the pending suit. The tribunal
found in favour of the employer on the ground of a series of records that proved incontrovertible.
On such basis the judge granted the trade off between the employer's compensation claim and the
employment termination indemnity due the employee.
(Counsels: Giorgio Molteni and Claudio Ponari)

OTHER RULINGS
DISMISSAL FOR OBJECTIVE JUSTIFIED CAUSE: EXTINCTION OF THE POSITION AND
INALIENABILITY OF THE DECISION BY THE EMPLOYER
(Tribunal of Bergamo, 15 September 2010)
The tribunal of Bergamo pronounced that a dismissal qualified as justified where the position held by the
employee was to be terminated as part of a process of corporate reorganization designed to streanline the
organizational structure f the company. Funding against the view of the petitioner, the judge declared that the
reorganization plan was not prompted by the current economic slump but by a view to optimizing corporate
structure, which might also imply greater cost efficiency. Such plans were inherent to corporate life and the
employer enjoyed the inalienable right to decide on what was best. It was not for the judge to tell an employer
how to run a business. On that ground, the judge declared legitimate the new share out of the tasks inside the
company as provided by the reorganization plan.
(Counsels: Vittorio Provera and Marta Filadoro)

REINSTATEMENT ON APPEAL. CONTRIBUTIONS ON RETRIBUTIONS TO BE PAID BUT NOT

INTERESTS ON BEING OVERDUE
(Tribunal of Rome, 20 September 2010)
The tribunal of Rome found against the claim of Social Security seeking from a company, who had dismissed
an employee and had seen the decision of the lower court overturned in Appeal, not only the contributions due
for the period the employee had been out of the company, to be subsequently reinstated, but also payment of
the interests charged for failed contribution for the period the employee had been out of the company, since
reinstatement went along with due compensation calculated as the wages due the period out of work.
The judge did not allow the request of Social Security for payment of interests on overdue contributions.
(Counsels: Giacinto Favalli and Paolo Zucchinali)

TRIFIRÒ & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO WWW.TRIFIRO.IT
 NEWSLETTER T&P N°42 YEAR IV PAGE 6

Civil, Commercial and

Insurance Law
Focus
AGENTS IN FINANCIAL INSTRUMENTS AND CREDIT MEDIATORS
UNDER THE NEW REGULATIONS
By Francesco Autelitano

The agent in financial instruments exercizes mandated by banks and other

intermediaries appointed, whereas credit mediators exercizes of both parties
without being attached to either of them. The scheme reflects the provisions of
the civil code that provides respectively for agency (art. 1742) and mediation (art.
1754).

✦The agent in financial instruments, therefore, promotes and finalises loans on the
basis of a mandate from the bank. Generally speaking, that mandate is exclusive, though
the agent may sometimes have in his portfolio other instruments or services from another
or two other principals for the scope of completing his range of services. The principal is
jointly responsible with the mandated for damages incurred by third party by the agent
also where the latter is involved in a penal procedure. The agent may be either a
company or a natural person, possessed with determined requisites. The exercize of this
activity requires registration in an apposite directory, save for insurance agents and
brokers already authorized to carry out this activity.

✦The credit mediator is the person who brings together, also by way of consultancy
work, banks and customers for the granting of loans and funding. Such activity may be
exercised only by joint-stock companies and also in this case said mediators must be
registered in an apposite directory.

One may not be both Agent and Mediator.

The law provides for both distinct and separate professions specific responsibility all with
regard to the activity of employees and collaborators, and sets forth that, on the one hand,
they must also guarantee that such dependents are possessed with the appropriate
requisites that the activity requires and that, on the other hand, the Agent and the Mediator
are jointly responsible alongside their collaborators for damage incurred by third party, also
where the facts ascertained are of a criminal order.

TRIFIRÒ & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO WWW.TRIFIRO.IT
 NEWSLETTER T&P N°42 YEAR IV PAGE 7

Insurance
By Bonaventura Minutolo and Teresa Cofano

Absent any legal action, claims in damage compensation fall into the longer
STATUTE OF
statute of limitation provided for the crime, where the civil judge ascertains
LIMITATION FOR
incidentally the existence of such subject matter as qualifies as crime fact.
DAMAGE CLAIMS
(Court of Cassation, 23 September 2010, n° 20111)

Information brief
By Vittorio Provera

MODIFYING ADMINISTRATIVE RESPONSIBILITY OF COMPANIES

AND LEGAL PERSONS

The government has recently approved a bill that modifies Legislative Decree #231, 8 June
2001 pertaining to the administrative responsibility of legal persons, companies and
associations also without legal representative.

As well known the regulations in force regard the administrative responsibility of companies in front of the
Commission (for instance, legal representatives, executives or employees) in case of offences rated as
serious under the terms of Legislative Decree #231, 8 June 2001. Over the years, such responsibility has
been extended also to culpable homicides, serious and very serious injuries committed in breach of
workplace safety regulations.

The innovation of the bill is essentially that it puts the onus on the inspectors for workplace safety to
demonstrate the existence of non-complying and/or illicit conducts from the employer. In addition, and in
order to prevent breaches of workplace safety standards, companies must adopt such preventive
measures as imply the allocation of appropriate sums of money to ensure compliance with workplace
anti-hazard regulations. Inspectors must prove that the soon-to-be created Office for Vigilance (OdV) did
not carry out properly its mandate and that the persons committed the breach without having fraudulently
dodged the organizational framework.

Such reversal of the onus of proof is critical insofar as it becomes incumbent on the judiciary authority to
carry out preliminary assessment establishing illicit conduct and/or corporate organizational failure in
respect of regulations. On the other hand, such provisions aim at developing and encouraging corporate
governance. (…)

TRIFIRÒ & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO WWW.TRIFIRO.IT
 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

Design: Emanuela Zocchi

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

The Firm advises major Italian and foreign corporations, and

has a network of qualified affiliates firms throughout Italy,
Europe, United States, China and the United Arab Emirates.
It also ensures on-spot assistance through its lawyers
everywhere in Italy and abroad.

Trifirò & Partners boasts one of the most prestigious legal libraries in 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.

Practice Areas
Labour Law
Company Law
Insurance Law
Commercial Law
Finance Law
Industrial Law
Sport Law

Milan
20122, Via S. Barnaba 32
Tel.: + 39 02 55 00 11 Fax.: + 39 02 54 60 391; + 39 02 55 185 052; + 39 02 55 013 295

Rome
00192, Lungotevere Michelangelo 9
Tel.: + 39 06 32 04 744 Fax.: + 39 06 36 000 362; + 39 06 32 12 849

Genoa
16121, Piazza della Vittoria 12
Tel.: + 39 010 58 01 39; + 39 010 56 22 62 Fax.: + 39 010 58 28 71

Turin
10121, Via Raimondo Montecuccoli 9
Tel.: + 39 011 52 10 266 Fax.: + 39 011 51 19 137

Trento
38122, Via Galileo Galilei 24
Tel.: + 39 0461 26 06 37 Fax.: + 39 0461 26 44 41

trifiro.partners@trifiro.it www.trifiro.it http://twitter.com/TrifiroPartners

TRIFIRÒ & PARTNERS AVVOCATI MILAN ROME GENOA TURIN TRENTO WWW.TRIFIRO.IT