Newsletter T&P N°36 Eng

8/9/2019 Newsletter T&P N36 Eng

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

EditorialOur newsletter is celebrating its 3rd anniversary and moving fast beyond.

This 36th issue is quite an achievement and is an encouragement to move on.Our newsletter has relentlessly sought over the years to get ever better and toenrich its contents with breaking information for its readers, both in the area ofemployment law, civil law and insurance.

The firm itself is inspired by the same spirit and expands the range of itsservices by creating new branches (the latest up and going office opened in Trento), in a bid to stand ever closer to the exigencies of our clients and toimprove ever further the quality and fast-response approach to the professionalcounsels delivered.

We would very much appreciate if our lawmakers displayed the same spirit.The previous issue of our newsletter chronicled the tribulations of the newemployment regulations, plagued by amendments and counter-amendements, as expounded in greater details on the blog JOBtalk. After

being approved by the lower House the text is now bieing examined by theSenate and because, most probably, the text will be modified, it will have tobe re-examined by the Lower House for final approval and prior to beingpromulgated by the president of the Republic and published in the OfficialGazatte. Our next issue will keep you informed on developments.

Going back to the current issue, the Focus feature is this time dedicated toLabour Law, a reflection on the new rules applicable to CCTVsurveillance released by the Authority on privacy in a decision issued 8April 2010.

The feature is followed by our Ruling of the Month, which examines acase of dismissal for refusal to discharge one's remit. The Firm Casesfeature, meantime, reports on another dismissal case and on two rulings

regarding overtime.

The section on Civil Law examines a decision of the Court of Cassationon unfair competition between companies and poaching employees.Our Information Brief deals with the issue of stress risk, a conceptwhich as from August next will have to be duly assessed, in conformity andcompliance with the Omnibus Text on workplace safety (Legislative Decree#81/2008).

Till next month, enjoy your reading.

Stefano Beretta and the editorial staff: Stefano Trifir, Marina Tona,

Francesco Autelitano, Luca DArco, Teresa Cofano, Claudio Ponari,Tommaso Targa and Diego Meucci

This is an abridged and edited version in English of Trifir & Partners

newsletter. If you wish a full-length English translation, please contactStefano Trifir:[email protected]@trifiro.it

NEWSLETTER T&P N36 YEAR IV MAY 2010

NEWSLETTERTrifir & Partners Law Firm

CONTENTS

EDITORIAL

EMPLOYMENT LAW

FOCUS 2

FIRM CASES 4

CIVIL LAW, COMMERCIAL,INSURANCE

FOCUS 6

INFORMATION BRIEF 7

CONTACTS 9
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FocusBy Stefano Trifir

NEW RULES ON CCTV

SURVEILLANCE AT WORKPLACE

The Authority on the Privacy of Personal Data has issued on 8 April 2010 a new

decision with regard to CCTV surveillance,

which supersedes the decision dated 29

April 2004.

The new decision sets clear rules inside thebounds of which treatment of personal dataconducted by way of CCTV and in thepursuance of legitimate interests withoutrequesting the consent of the persons involvedmay be carried out.

The general principles are set forth under art 2:

data treatment proceeding from CCTV

surveillance must be grounded on one of the

requisites of legality expressly provided for in the

Code for public and private subjects and

economic state agencies. Such requisites are

applicable to a range of branches of activity and

are as such listed separately in the subsequent

paragraphs of the decision, with regard to both

private enterprises, government entities or state

controlled businesses;

any informatics system whatsoever and its

appending programme must already be

configured at the source in such manner as not

to use data that may identify the person

whenever the scopes of the treatment of

information may be reached by using simply

anonymous data. Such rule is governed by the

principle of necessity, which presides over the

due configuration of informatics systems and

software programmes for the scope of reducing

to a minimum the use of personal data (art. 3 ofthe Code);

CCTV surveillance must be conducted in the full

respect of the principle of proportionality, in the

selection of modes of filming and positioning of

cameras, as well as during the different phasesof data treatment, which must include, in any

event, due relevance of the data treated and

may not extend beyond the scopes defined (art.

11. 1, letter d) of the Code).

As regards work relationship, the Authority

dedicates a special section (art. 4.1. Work

Relationship).

The Authority makes clear that surveillance

must comply with the ban on distance controlof the activity of the employee and, to thateffect, prohibits the installation of equipmentthat are specifically designed to monitor agreedduties of diligence at work in terms of work

hours and performance (for instance, focusingcamera on ID badge).

The Authority also states that such workrelationship protection rules as are laid downwhere CCTV surveillance is made necessary onthe ground of organizational or productive

motives, or for workplace safety reasons, mustbe duly complied with. To that effect, andpursuant to art. 4 of Act #300/1970, installations

and equipment "which may also lie open todistance control of the activity of the employeemay only be used upon agreement with companyunion representatives or, absent representation,by the internal commission. In absence of accord, and upon request of the employer, the labour inspectorate shall provide, directing, where nece ssar y, the modes of us e of such

installations" (art. 113 and 114 of the Code; art. 8

Act. #300/1970.; art. 2 Legislative Decree.165/2001).

NEWSLETTER T&P N36 YEAR IV PAGE 2

Employment Law
http://www.garanteprivacy.it/garante/doc.jsp?ID=1712680http://www.garanteprivacy.it/garante/doc.jsp?ID=1712680http://www.garanteprivacy.it/garante/doc.jsp?ID=1712680http://www.garanteprivacy.it/garante/doc.jsp?ID=1712680http://www.garanteprivacy.it/garante/doc.jsp?ID=1712680http://www.garanteprivacy.it/garante/doc.jsp?ID=1712680http://www.trifiro.it/http://www.trifiro.it/


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Such protection rules are to be observed both

within the premises and in other areas where

work performance is being carried out, such as

construction sites and with regard to cameras

installed on board vehicles destined for passenger

transport (art. 82, 85-87 Legislative Decree 30

April 1992, #285). Under new code on passenger

vehicles destined for rental with drivers and stopstations (taxi cabs) who may not return to same

cab rank position CCTV footage used to ascertain

possible violations may not be used for controls,

even indirect, of the working activity of the

workers (see point 4.4).

Failure to comply with the aforesaid carries

administrative sanctions under art. 162, 2-

ter of the Code. The use of CCTV surveillancefor the control of employees or to conduct

investigations on their opinions qualify asoffences under the terms of the Code.

Likewise, CCTV footage at the workplace to

illustrate activities and operations for the sole

scope of divulging them or for institutional or

corporate communication and that show

employees may qualify as ex-tempore treatment

for the scope of possible publication of articles or

papers and other forms of expressions of ideas.

To that extent, they are subject to the same laws

applicable to the press as provided in the Code

(art. 136ff), inclusive of the bounds set to therespect of privacy to the right of information, and

the observance of the code of deontology

applicable to the press and the right of workers to

protect their own image on legitimate grounds

and for their divulgation (art. 7, 4, letter a) of the

Code).


Link:www.garanteprivacy.it

New decision with regard to CCTV

surveillance - April 8, 2010
http://www.trifiro.it/http://www.garanteprivacy.it/garante/doc.jsp?ID=1712680http://www.garanteprivacy.it/garante/doc.jsp?ID=1712680http://www.garanteprivacy.it/garante/doc.jsp?ID=1712680http://www.garanteprivacy.it/garante/doc.jsp?ID=1712680http://www.garanteprivacy.it/http://www.garanteprivacy.it/http://www.garanteprivacy.it/garante/doc.jsp?ID=1712680http://www.garanteprivacy.it/garante/doc.jsp?ID=1712680http://www.trifiro.it/http://www.trifiro.it/


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OVERTIME WORK PROOF

(Court of Appeal of Naples, 17 March 2010)

The Court of Appeal of Naples rejected on lack of evidence an action brought by a worker who claimed

he had worked overtime, at nights and on holidays, without receiving retribution and who also claimed he

had worked for six running days and, as a consequence, had incurred damage caused by late

recuperation. The Tribunal held that the onus was on the worker to provide incontrovertible evidence

instrumental in demonstrating both the execution of the above claimed overtime work and the amount of

such work.

(Counsel: Marina Olgiati)

RETRIBUTIVE DIFFERENCE OVERTIME AND HOLIDAYS WORKED INDEMNITY(Tribunal of Padua, 23 February 2010)

A manager brought action in front of the Tribunal of Padua claiming he was entitled to the corresponding

retributive difference for overtime and worked holidays executed in the course of his employ, although on

those very issues he had been granted by contract an "indemnity" due his executive capacity and owing

specifically to his managerial status and the attendant remit.

The Judge reject the claim for the above corresponding retributive difference, declaring that the nature of

the above named "indemnity" received by the employee was doubtless aimed at compensating also

"performance executed beyond regular work hours", although with regard to holiday overtime, in

particular, the Judge held that such contractual scheme "falls within the bounds of the laws that regulatesuch form, which, for executive personnel with independent decision powers for whom duration ofemployment is not measurable or pre-fixed, or may be determined by the employees themselves, excludethe right to compensation for work performed beyond regular work hours, on days of rest and weeklyholidays (see art. 1, 2, By-Law n 692, 1923, art. 17, 5, letter a of Legislative Decree #66, 2003)".

(Counsels: Giacinto Favalli and Valentina Ruzzenenti)


OTHER RULINGS
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Civil, Commercial and

Insurance Law

UNFAIR COMPETITION

BETWEEN COMPANIES AND

POACHING EMPLOYEES

By Francesco Autelitano and FrancescoCristiano

(Civil Court of Cassation, 30 October 2009,

#23045)

A company (we shall name Alpha) brought actionagainst another company (we shall name Beta) andagainst Messrs Smith and Doe (names fictitious),

claiming that the latter, previously employed by theplaintiff company, and thereafter hired by thedefendant company had revealed to Beta industrialtrade secrets held by Alpha which had enabled Betato move swiftly to the commercialization of aproduct by also taking away clients and incurringasset damages. Alpha made a recourse for cease anddesist against the defendant to divulge to third partythe industrial trade secrets and banning the actuationof the industrial technique, and the distribution ofinstallations destined to the execution of suchindustrial technique, seeking compensation fordamage and publication of the sentence on nationalbroadsheets.

Having lost the case in both lower grades, Alphaappealed to the Court of Cassation, contending, inparticular, that earlier rulings had overlooked the factthat there had been coincidence between theresearch activity conducted by Beta upon the hiringof Mr Smith; that Beta's new industrial technique hadvery swiftly turned operative and that Alpha and Betaproducts were substantially similar, were it only to

thelimited extent of a partial coincidence betweenthe respective manufacturing techniques.

The Court of Cassation rejected the appeal pointingout firstly that the evidence submitted by the

appellant referred to the merits of the case and assuch remained outside the bounds of this jurisdiction. That point aside, in the view of theCourt of Cassation the elements mentioned byAlpha did not prove beyond doubt the grounds onwhich its claim for damage was based, namely thatthe competition exercised by Beta had developedthanks to the revelation of industrial trade secrets byMr Smith and not on the basis of the licit employ ofthe knowledge of such techniques Mr Smith hadexperienced offered no claim to assert that the

latter had deliberately leaked secrets in this regardto Beta, his new employer.

Indeed, such revelations had not emerged clearlyfrom the evidence submitted since the argumentspresented by Alpha failed short of proving unfaircompetition. As regards evidence of poachingpersonnel, the Court of Cassation confirmed theearlier opinions that the hiring of Messrs Smith andDoe had been inspired by their top-ratequalifications, the which excluded any such

qualification of malevolent intent from Beta asshould have been necessary to prove unfaircompetition.


Focus
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Information BriefBy Vittorio Provera

WORK-RELATED STRESS RISK EVALUATION IS TO BECOME

MANDATORY

As from August next, every employer (from small-to-large business) shall be in duty bound to

evaluate the stress risk correlated to work.

Indeed, art. 28 of the Omnibus Act on workplace safety (Legislative Decree 81/2008), in conformity to the

principles of the European Accord of 8 October 2004 and following modifications introduced by

Legislative Decree 106/2009, makes it compulsory to proceed to the evaluation of the stress risk of

correlated work in conformance with what are to be deemed the explicit indications provided by thePermanent Consultative Commission. According to the above cited art. 28, in absence of such

indications (as things indeed do stand presently), the obligation starts nonetheless as from 1 August

2010. In such a situation, quite not infrequent in our country, the Technical and Interregional Co-ordinating

Committee on Workplace Prevention (an inter-regional agency) approved on March 25 its own true and

proper operative guidelinesfor the evaluation and the management of this issue. The paper examines,among other things, the general aspects of risk valuation; the steps for the valuation andmanagement of risk and the criteria and methods of valuation; health monitoring and the role ofprevention and vigilance services.

This article does not have the space to fully illustrate the details of this complex report (which may be

found on the Internet anyway), but it is worth pointing out a few significant pieces of information drawn

from it and that help get a better picture of the problem as a whole. Indeed work-related stress (which isinclusive of a number of phenomena like, for example, burnout, stressogenic pathology which affects

people who exercise support/remedial teaching when they find themselves no longer in a condition to

address adequately an excess in stress load generated by their profession, bullying, etc) currently

accounts for a percentage between 50% and 60% of lost working days every year.

Recent surveys conducted in the EU countries show that discontent at work and its attendantpathologies rank second in the standing of health problems mentioned by workers and accounts forabout 22% of the workforce in Europe. In Italy work discontent affcts 27% of the workforce(unfortunately, it should be borne in mind that in Italy stress-generating pathologies are all too often used

as pretexts to claim pecuniary compensation, which comportment causes prejudice to all the real cases

of work-related sufferings). In 2002, the European Union estimated that the economic cost of work-

related stress amounted to 20 billion. All specialisied agencies and research centers, governmental and

private, are agreed on the fact that this phenomenon is on the rise and worsening because of changes in

the forms of work and its organization. In particular, five areas have been identified as having stress-

generating characteristics:

the use of new types of employment contracts (precarious no-term contracts) and insecurity aboutpermanence of employment contracts;

increase of the average age of workforce (with rising age incident on the concomitant tendency torigidity and lack of flexibility towards new forms of work);

heavy workloads also because of the introduction of new technology (in services and/or administrative

and banking systems, for instance, the Internet and email have helped create and multiply capabilitiesand requests and have cut back response time) that put added pressure on employees;
http://www.scribd.com/doc/31867695/VALUTAZIONE-E-GESTIONE-DEL-RISCHIO-DA-STRESS-LAVORO-CORRELATOhttp://www.scribd.com/doc/31867695/VALUTAZIONE-E-GESTIONE-DEL-RISCHIO-DA-STRESS-LAVORO-CORRELATOhttp://www.trifiro.it/http://www.trifiro.it/


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emotional tension caused by workplaceaggressive and harassing conducts;

interference and imbalance between workaday life and private life (also here new technologymay have caused ever increasing interference of

activity also during periods typically dedicated toprivate life).

Such factors make it incumbent on thecompanies, and in order to meet the regulationsset forth and to evaluate and address diversissues, to examine case by case their corporateorganization following a procedure thatcompounds all the factors that enableenterprises to adopt, among other things, a riskevaluation procedure that is dynamic rather tanstatic.

In other words, it will be necessary to bear in mind

that while, in general, the model of work-related

risk evaluation adopted on the basis of legislative

decree 626/94 was destined to verify the

existence of an hazard-free context or of an

acceptable degree of hazard generating context,

the new scope covers quite other exigencies.

The new rules and specific characteristics

attached to these forms of pathology call for a

system and a procedure for the evaluation of the

stress risks indicators indicative of such

phenomena that are continuous in time and that

register variations of the subjective and objectivesituations and conditions of the people. In other

words, and in line with the findings of the report of

the Technical Commission mentioned earlier,

work-related stress risk may not stop short at a

generic assessment of an absence of stress risk

at a given time insofar as such risks may remain

at all times and anywhere just below the surface,

though clearly some work remits and tasks are

more susceptible to favour their emergence.

>>Guidelines:

W o r k - r e l a t e d s t r e s s r i s k

evaluation
http://www.trifiro.it/http://www.scribd.com/doc/31867695/VALUTAZIONE-E-GESTIONE-DEL-RISCHIO-DA-STRESS-LAVORO-CORRELATOhttp://www.scribd.com/doc/31867695/VALUTAZIONE-E-GESTIONE-DEL-RISCHIO-DA-STRESS-LAVORO-CORRELATOhttp://www.scribd.com/doc/31867695/VALUTAZIONE-E-GESTIONE-DEL-RISCHIO-DA-STRESS-LAVORO-CORRELATOhttp://www.scribd.com/doc/31867695/VALUTAZIONE-E-GESTIONE-DEL-RISCHIO-DA-STRESS-LAVORO-CORRELATOhttp://www.trifiro.it/http://www.trifiro.it/


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TRIFIR & PARTNERS LAW FIRM

Trifir & Partners has its head office in Milan and branch offices in

Rome, Genoa, Turin and Trento. Founded in the sixties by Mr.

Salvatore Trifir, it now numbers 80 professionals and staff-workers

coordinated by the Partners.

Trifir & Partners is the foremost firm in Employment Law and it alsoprovides 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.

Trifir & 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.

DEPARTMENTS:

Employment, Agency, Security and Trade-Union

Trading, Industrial, Bankruptcy

Insurance, Banking, Company, Contract

Administrative

Family, Succession

CORRESPONDING FIRMS:

Belgium, Denmark, France, Germany, Ireland, Luxembourg, Netherlands, Portugal, Spain, Sweden, UK,

China, United Arab Emirates

Milan20122, 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

Genoa16121, 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

[email protected] www.trifiro.it http://twitter.com/TrifiroPartners

Design:EmanuelaZocchi
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Newsletter T&P N°36 Eng

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