On 8 August, a final version of the draft related to the Law Decree “standardising” the Privacy Code (Legislative Decree 196/03) with the European Regulation 679/2016 on the matter of personal data protection (GDPR) has been approved. More specifically, the Decree establishes that the rights of the interested party may be limited or excluded whenever they are in contrast with the needs established by the laws of the State, as in the case of anti-money laundering or whistleblowing. The Decree establishes some specific offences that would not fall under the ne bis in idem principle and would thus be established and penalised according to our regulations. Among others, these are: (i) unlawful processing of the data; (ii) the unlawful disclosure and dissemination of the data undergoing large scale processing; (iii) the fraudulent acquisition of personal data undergoing large scale processing; (iv) the breach of provisions governing remote supervision and employee’s opinion surveys. The draft includes, in addition, that the pending proceedings before the Data Protection Authority not closed at 25 May 2018, may be closed with the payment of two fifths of the minimum penalty within 60 days from the date in which the Decree enters into effect. Instead, concerning future disputes, the offender and the obligated party together may settle the dispute by accepting the ruling of the Data Protection Authority (if issued) and by paying an amount equal to half of the penalty ordered. In addition, the new draft lowers to 14 years old the age when a minor can provide his/her direct consent for activities on social networks or similar platforms (including for marketing and profiling purposes). Last but not least, is the fact that in the first eight months the Data Protection Authority shall keep into account, in order to apply the administrative fines and within the limitations compatible with the GDPR, the application difficulties that will occur in the first months. In the next few weeks the publication is expected on the Official Gazette: the entry into force of the Decree is expected to match the day of the publication.

The National Labour Inspectorate (INL), with  its Note No. 6316 dated 18 July 2018 provided its opinion regarding the legal nature of the offence related to failure to hire disabled individuals or individuals belonging to the protected categories as per art. 15, paragraph 4, of the law No. 68/1999. According to INL the aforementioned offence shall be deemed immediate and with permanent effects. Immediate due to the fact that the omission occurs when the term established by law expires and the party bearing the legal responsibility to perform the hiring by the 60th day from the date in which the obligation occurs fails to do so. Permanent due to the extended effect of the offence over time until the breach is corrected. Qualifying an offence as immediate triggers a number of repercussions in terms of applicable regulation, in the case of sequence of laws over time. Regarding the offences occurred when the old regulation was in force – whose effects continue to apply even after the new penalty provision established by article 5, paragraph 1, letter b) of Law Decree No. 185/2016entered into force on 8 October 2016 – the applicable penalty will be the one in force at the time in which the offence occurred, according to the “tempus regit actum” principle. Even with reference to the terms of the statute of limitations it will be necessary to refer to the time when the offence actually occurred.

In reference to the so called  Riders – a hot topic that has heated up recent public debates after a few case law rulings and the “exchange” of opinions between the government and several companies operating in the delivery service sector – employers organisations Confetra, Fedit, Confartigianato Trasporti, Cna Fita, Casartigiani, Claai and workers’ unions Filt-Cgil, Fit-Cisl, and Uiltrasporti signed an agreement on 18 July 2018. According to said agreement, workers’ who would accept goods for delivery via bicycles, motorbikes and scooters (Riders) will be covered by the National Collective Bargaining Agreement for Freight Forwarding, Logistics and Shipping. More specifically, Riders will fall under professional category C related to the regulations governing travelling personnel to whom travel allowance is not due. These workers are assigned a specific remuneration parameter and a work hour limit of 39 hours, distributed over a maximum of 6 days in a week and with outstanding balances over a period of 4 weeks. In any case, the overall work hours cannot exceed 48 hours, including overtime and a flexible week is established for weekly rest. In addition, it was resolved that personal protection equipment such as helmets and vests, be provided by the companies and that Riders be eligible for all the insurance and social security coverage established by the law and by the National Collective Bargaining Agreement. The agreement regulates also part-time work and internships and establishes second level negotiation.

Too much protection and rigid obligations. The Dignity Decree is an insidious and difficult law to apply. In the opinion of attorney Vittorio De Luca, Managing Partner of the Law Firm De Luca & Partners, specialised in labour law, “now more than ever, businesses must pay significant attention to the reasons that legitimate the use of fixed term contract and to the finalisation of the related reason. In fact, they represent the main pitfalls of the new law on fixed term contracts”. Indeed, the decree “does not limit itself to call for the obligation to provide a reason for the use of the fixed term contract, but also requires that the reason be due to ‘temporary, significant and non-programmable increases’ of the ordinary business activity. In the case of a dispute, it is difficult, in the majority of the cases, for businesses to provide proof that all three requirements have been met”, the attorney explains. The obligation to provide the reasons has been introduced for the first time in the Italian legal system in 1962, with the Law 230, in a completely different economic context compared to the current one. Only in 2014 it was finally abrogated. Now, the rules have changed again. It will take 12 to 18 months for the labour law expert to see if the changes introduced will help in promoting open-term employment. However, I am afraid that the transformation of fixed term contracts into open-term contracts hoped for by the government will not occur. If this were to be the case, I hope the law-makers will have a change of heart on the effectiveness of the new regulation”, De Luca adds.
“In addition, the requirement to add a reason may drive companies to enter into three 12-month contracts with three different people, rather than hiring a single person for three years. In this case, the possibilities for a stabilisation of the relationship would be reduced significantly”.
To discourage “the excessive use of fixed term contracts”, as it is in the intentions of the government, it would be better to work on the reduction of the tax and social security contribution burden associated with open-term contracts.

The Court of Cassation, with judgement No. 19732 dated 25 July 2018, confirmed that in the case of dismissal for justified objective reasons, the selection of the employee, or employees, to be dismissed is not fully at the discretion of the employer. In fact, it is limited, in addition by the prohibition to discriminate, by the rules on fairness and good faith to which, pursuant to articles 1175 and 1675 of the Civil Code, each conduct of the parties must comply as part of a mandatory relationship and thus, even in the case of termination of one of the parties. On the matter, the Court of Cassation remarked that the trial judges discussed the issue of how to identify in practical terms the objective criteria that allow deeming said choice compliant with the aforementioned principles, deeming that it is possible to refer to, even while taking into account the diversity of the respective regimes, the criteria established by the Law No. 223/1991 governing collective dismissals. Thus, consequently, in light of the criteria of family dependants and service seniority established in a similar fashion for said dismissal. Moreover, said criteria allow the employer to perform its unilateral power of selection consistently with the interests of the employee and of the company. Consequently, among multiple fully available employees  and faced with the needs, originating from production reasons, to reduce by one or multiple units the work force, it is necessary to respect the aforementioned fairness and good faith principles. In terms of the penalties applicable whenever this legal principle is breached, the Court of Cassation has reminded of what is established by the Law No. 92/2012 (the so-called Fornero Law) which establishes typically payment of the indemnification ranging from a minimum of 12 and to a maximum of 24 monthly salaries, reserving the restoration of the employment relationship, with an indemnification up to a maximum of 12 monthly salaries in those residual cases that act as exceptions, where the non-existence of the fact on which the dismissal is based is supported by specific proof. Therefore, a breach in the principles of fairness and good faith when choosing among employees performing similar tasks, according to the Court of Cassation gives right to the indemnification protection established by paragraph 5 of article 18, given that the case of “open non-existence of the justified objective reason” does not apply as set out in article 18, paragraph 7, of the Law 300/70, as a prerequisite for granting the reintegration protection.