NEWSLETTER T&P N°38 YEAR IV

JULY 2010

NEWSLETTER
Trifirò & Partners Law Firm

Editorial
Before setting off for vacation we offer you a newsletter that may also prove fruitful
in your leisure time. There are a number of novelties and of enriching topics in this
issue.
Firstly, though, we would like to go back on something of the overhaul we
announced in the June issue of the newsletter and that regards our new website.
Easy of access, thoroughly upgraded in both its contents and graphics, the site is
meant to keep the time-honoured spirit of the Firm with vanguard technology and
new global trends.
www.trifiro.it is a site is meant as a multiplatform and features information and
in-depth analyses in a multimedia and interactive fashion and may travel on
iPhone, iPad, BlackBerry. www.trifiro.it is integrated with the main social networks
and their accounts, TrifiroPartners on twitter and TPAvvocati on Scribd. 
The principal innovation of the News section with its sub-menu of Newsletter,
Events, Publications and Highlights, is that it enables people to share on the Web
all the contents posted. Thanks to the integration with Scribd, T&P's newsletter
issues may be read-scrolled on line or downloaded in pdf format. Don't miss out on
it!
As to the contents of this month's newsletter, the Focus feature of our
Employment Law section goes back again on the topic of work-related stress
risk, which was dealt with in the June issue, because the bar date for the
implementation of risk assessment and valuation has been put off to 31
December 2010. A wise decision, if one considers the lack of clarity of the
provisions.
The “Firm Cases” regular feature reports on divers cases of individual and
CONTENTS collective dismissals and, particularly, our “Ruling of the Month” examines the
issue of the affixing of the code of discipline, deemed unnecessary where there is
fair cause dismissal.
✦ EDITORIAL
The “Information Brief” provides an analysis of the main provisions with
✦ EMPLOYMENT LAW respect to employment and social security and that come within the
framework of the stabilization and competitiveness Act, which was
✦ FOCUS 2 introduced by Legislative Decree #78/2010 upon publication 31 May.
We remind you that the News section also contains the interviews released by
✦ FIRM CASES 3
members of the firm to the press, accessible both in print and online.
We wish you all a pleasant holiday and hope you enjoy the reading till next time!
✦ CIVIL LAW, COMMERCIAL,
INSURANCE Stefano Beretta and the editorial staff: Stefano Trifirò, Marina Tona,
Francesco Autelitano, Luca D’Arco, Teresa Cofano, Claudio Ponari,
✦ INFORMATION BRIEF 5 Tommaso Targa and Diego Meucci

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

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 NEWSLETTER T&P N°38 YEAR IV PAGE 2

Employment Law
Focus
By Stefano Beretta and Luca D’Arco

WORK-RELATED STRESS RISK EVALUATION: IMPLEMENTATION

IS MOVED DOWN TO END OF YEAR

The bar date of 31 August set for the assessment and evaluation, by both private sector
employers and public administration, of work-related stress risks has been put off to 31
December, following an amendment introduced to §12 of art. 8 of Senate Decree 78/2010.

It should be reminded that §1-bis, art. 28 of Legislative Decree #81/2008 lays down that work-related
stress risks evaluation must be conducted in conformity with the instructions issued by the permanent
consultative commission on workplace health and safety pursuant to art. 6, §8, Legislative Decree 81/08
and that such obligation falls due upon the definition of said instructions and, in any event, as from 1
August 2010. Everything now moves down to 31 December 2010.

We have already dwelt extensively on that issue in the previous newsletter. The point we wish to underline
here is that stress risk which is work-related should not be mistaken with workplace bullying, where a
deliberately persecutory conduct, repeated over a significant period of time (6 months, according to case-
made law) pursues the specific intent of driving the employee to hand over his resignation or in any event
to leave the company.

Stress risk, instead, is not associated with deliberately "stressful" conducts and its evaluation aims to
identify the sources that may induce injuries or direct damages to health and is also to identify those
signals that are indicative of the presence or non-presence of stress.

The scope is to prevent, reduce or eliminate the problem and improve, by so doing, workplace safety and
hygiene standards. This implies the recognition that some indicators of stress risk may be found in the
organization of labour itself, such as:

✦ excessive workload
✦ uncertainties regarding tasks and lack of training
✦ inadequate workstation, temperature too high or too low, excessive noise

Pending the issuance of the instructions by the permanent consultative commission, employers should
have acted by themselves. In addition, the apposite committee appointed inside the commission
temporarily suspended its activities after the Ministry of Labour made it clear that the issue deserved
more in depth study. The issue is of major relevance and requires procedures that ensure appropriate
action. We shall monitor the developments to come.

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 NEWSLETTER T&P N°38 YEAR IV PAGE 3

Firm Cases
RULING OF THE MONTH
THE AFFIXING OF THE CODE OF DISCIPLINE IS NOT NECESSARY WHERE DISMISSAL
IS TRIGGERED BY BREACH OF THE FUNDAMENTAL DUTIES ASSOCIATED WITH
EMPLOYMENT RELATIONS OR BY CLEAR CONTRAST WITH COLLECTIVE
PERCEPTION AND THE FUNDAMENTAL RULES OF CIVIL INTERCOURSE
(Court of Appeal of Palermo, 9 June 2010)

The Court of Appeal of Palermo rejected a claim of illegitimate dismissal for non-affixation of
the code of discipline and affirmed that such affixation was not necessary where the
conducts at issue prohibited at law went against the fundamental rules that govern
employment relationships. In so deciding, the Appeal Judge applied a principle which
previous decisions of the Court of Cassation have repeatedly upheld, namely that
disciplinary sanctions at the workplace regard conducts that are wrongful in a sense that
may not be interpreted with the same rigour found for criminal wrongdoings under art. 25 of
the Constitution, §2, but that a line must be drawn between wrongdoings that are breaches
of rules very specifically associated with corporate organization, and generally ignored of the
body collective and consequently only known where expressly provided for and inserted, for
that purpose, in the code of discipline to be affixed pursuant to Act #300/1970, art. 7, and
wrongful conducts that are blatantly against the interests of the company or of the
employees, for which class of wrongful conducts no specific corporate code of discipline is
necessary, because the disciplinary power that backs the employer in a dismissal fair way or
for justified subjective motive is the law itself.
(Counsel: Damiana Lesce)

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 NEWSLETTER T&P N°38 YEAR IV PAGE 4

OTHER RULINGS
THERE IS FAIR WAY DISMISSAL WHERE THE EMPLOYEE IS FOUND CONDUCTING
TRANSACTIONS EXTRANEOUS TO THE TASKS ASSIGNED HIM BY THE OFFICE WHERE HE
WORKS, AND IN CONNIVANCE WITH THIRD PARTY
(Tribunal of Lodi, 4 June 2010)
An employee in charge of a production unit was dismissed fair way when it was discovered that while working in his
office he would also sell duty stamps, in agreement with subjects extraneous to his employment relation, and
knowing full well that his employer had terminated the commercialization of duty stamps. His superior was kept
uninformed of such renewed activity. The employee had asked for interim relief against the dismissal in front of the
Employment Tribunal, contending that his action had not been conducted for profit since he merely transferred the
duty stamps acquired by third party and supplied him at cost price, but, rather, for the convenience of users who
were unable to find a business in the vicinity authorized to sell duty stamps. By acting on his own initiative, however,
the employee put his employer in the situation of being subject to administrative sanctions from the agency
competent for overseeing the due sale of such duty stamps. The Tribunal of Lodi rejected the petition for interim
relief on the ground that the selling of duty stamps was expressly provided for at law and subject to strict rules and
that the sale of such stamps not for profit was neither mitigating nor extenuating circumstance.
(Counsel: Claudio Ponari)

REMOVAL OF THE DIRECTORSHIP OF A SPECIALISED DEPARTMENT QUALIFIES AS

DOWNGRADING OF MEDICAL DIRECTOR
(Tribunal of Pinerolo, ordinance 15 March 2010)
To remove from a doctor the responsibility of the research and assistance activity of a specialised department, even
where the same responsibility is assigned to that doctor to a different specialised department qualifies as “breach of
the fundamental right to the exercise of the professional life of a highly specialised medical doctor” and such
subjective position “falls inside the inalienable rights of the professional as worker, whose dignity is all the more
sensitive as his professional qualification is higher”. Such was the motivation of the Tribunal of Pinerolo who
accepted the petition of a medical director represented by the firm and who issued an ordnance to the medical
establishment, to the effect that the doctor was to be forthwith re-assigned the responsibility of the hospital beds
and of the research activity attached to the department he had previously been in charge of.
(Counsels: Giacinto Favalli and Angelo Di Gioia)

SOCIAL SECURITY VERIFICATIONS - NON-DEPENDENT EMPLOYMENT - ONUS OF PROOF

(Tribunal of Milan, #2810, 22 June 2010)
In the course of verifications conducted by Social Security, it was found that an R&D and training company
employed large numbers of people under a variety of precarious employment contract schemes qualifying broadly
as consultancy services. The Social Security inspection drew up a report for non-payment of contributions.
The report was challenged and the Employment Tribunal of Milan held that employment contracts on project were
lawful on the face of it but that as regards the substance of the other variety of precarious, co-ordinated and on-
going forms of employment contract collaborations, the Social Security had fallen short of the onus of proof insofar
as it was unable to submit elements that could evince the dependent nature of the employment status, in particular
with regard to submission to a hierarchical and disciplinary structure.
(Counsels: Stefano Trifirò and Mariapaola Rovetta)

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 NEWSLETTER T&P N°38 YEAR IV PAGE 5

Civil, Commercial and

Insurance Law
Information Brief
By Vittorio Provera

NEW PROVISIONS ON EMPLOYMENT AND SOCIAL SECURITY IN

THE NEW ECONOMIC STIMULUS PACKAGE FOR STABILIZATION
AND COMPETITIVENESS

The scope of the set of measures and provisions contained in Legislative Decree #78/2010,
published on 31 May 2010, is to bring down the deficit of the state, which currently runs at 5%
of GDP to 2.7%.

The measures include cuts and containments of expenses by public administration, measures against tax
evasion and for financial sustainability. A number of provisions have a direct impact on companies and on
workers.

Firstly, art. 12 provides new rules for retirement as from 1 January 2011. Under the new regime, for
workers who wish to access old age pension benefit upon meeting the requisites of contribution and who
have reached maximum pension age (65 for men and 60 for women in the private sector), pension
benefits shall start 12 months from the maturity of both requisites of age and contribution. The same rule
of the 12 months stay from the date of maturity and meeting of the requisites applies to workers who
intend to access old age pension under current legislation.

Art. 28, meanwhile, provides for the Internal Revenue Service to conduct specific controls on people who
drew but did not declare wages as salaried persons and yet, according to Social Security cross-checks
appear as having paid welfare contributions.

Stock options and emoluments variable are subject to new regulations under art. 33 and apply to
executive directors and persons who have on-going and uninterrupted relations of collaboration in the
finance sector. In such respect, an additional 10% quota on the outlays to which the executives and
collaborators are entitled in the form of stock options and emoluments variable, on the part that amounts
to more than three times fixed retribution.

On the other hand, art. 53 provides that for a number of tax and contribution relief for the period 1
January 2011 - 31 December 2011. Indeed, all outlays to dependent employees of the private sector
(upon collective, territorial, or corporate accords or agreements) - and where associated with increase in
productivity, quality, profitability, innovation, organizational efficiency, connected to economic performance
or to the earnings of the company or to other elements indicative of an improvement of competitiveness,

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 NEWSLETTER T&P N°38 YEAR IV PAGE 6

shall be subject to the application of a single flat taxthat should amount to 10%, in substitution for the
Personal Income Tax and the additional regional and municipal taxes, with a ceiling of €6000 in retribution
before tax, net of contribution where revenues from dependent employment is equal or superior to
€40,000.

News
As lawmakers were busy reshaping the labour market, July 2010 proved equally busy for our partners
who were requested by the press to comment and express their opinions on new labour and
employment legislation.
With the economic crisis far from over, labour market flexibility remains a dominant though complex
issue, as the type of labour market flexibility companies need must also take into account the
necessary protection of employees. A first step would be to modify the social net regime by making
its requisites more selective.
Another issue regards the reduction of taxes and contributions to both boost corporate
competitiveness and increase the purchasing power of consumers.
A set of incentives should be created to encourage new companies looking into the future, in
particular when set up by young people, daring in spirit and ready to run over bureaucratic, fiscal and
administrative hurdles.
Lastly, the reform designed to introduce conciliatory arbitration of labour disputes and that was
aimed at cutting down the backlog is still hanging high and dry at the Lower House of Parliament.

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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

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

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