For Vittorio De Luca, Managing Partner of the law firm De Luca & Partners, “from an employment law point of view, the most important changes are the new fixed-term contract regime, aimed, at least partially, at overcoming the restrictions introduced by the so-called Dignity Decree, as well as those in the field of safety at work, accidents and welfare. The changes made in the field of fixed-term contracts are significant and considerably expand employers’ flexibility, without reaching the point of complete deregulation introduced almost 10 years ago by Italian Decree-Law no. 34/2014. The Dignity Decree introduced new grounds for relationships lasting longer than 12 months. With the changes introduced it is now possible to enter into, renew or extend fixed-term contracts (i) in the cases provided for under collective agreements referred to in Article 51 of Italian Legislative Decree no. 81/2015, (ii) in the absence of provision for collective bargaining, for technical, organisational or productive needs identified by the parties, as well as (iii) in the event of the replacement of other workers. Article 24, paragraph 1-ter also provides that only employment contracts entered into on or after 5 May 2023 should be considered for the purposes of reaching the 12-month ceiling. Following the applicative uncertainty caused by the content of this provision, the Ministry of Labour, in a Circular of 9 October 2023, clarified that, as from 5 May 2023, employers will be able to make use of fixed-term employment contracts for a further (maximum) period of 12 months, without the need to indicate the ground”.
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As is well known, on 23 February 2023 the European Commission requested its employees and collaborators to uninstall the TikTok social network application from their business and personal electronic devices. This request was accompanied by the notice that, for those who had not uninstalled the social network by 15 March, it would no longer be possible to access other company applications such as the e-mail box or Skype services.
The decision taken by the European entity derives from a need to protect the data and information of those who work for it as well as from the need to increase IT security.
Could a private sector employer in Italy take the same decision?
In an attempt to provide an answer to this complex question, it is first of all necessary to distinguish between business and personal devices. If electronic tools, including mobile phones, are provided by the employer they are company equipment and, as such, the employer has the ability to implement a certain level of ‘control’ over them.
In fact, through the identification and adoption of internal policies defining rules for the correct use of the work tools with which its employees are equipped, the employer may introduce rules to prevent the improper use of the assigned tool and prohibit its use for personal purposes rather than prohibiting the installation of applications not connected to work activities on the device.
In the event of assignment of company tools, it is therefore highly recommended to implement internal policies and regulations that govern their correct use by assignees. In fact these aspects have across-the-board consequences related to the management of the employment relationship. Just think, for example, of topics relating to (i) employment law which also include aspects relating to disciplinary sanctions that can be adopted in the event of a breach of company rules as well as the correct exercise of control powers by the employer, (ii) the protection of personal data, both of the employees themselves and of the data they process due to their duties as well as (iii) health and safety and the risks to which the employees who use them could be exposed.
However, different conclusions can be reached on the subject of personal devices. Since these are, in fact, the employee’s own tools, the employer can limit, or even possibly exclude, the use of personal mobile phones during the workday without, however, entering into the merits of what can or cannot be installed on them.
Lastly, the use of electronic instruments, whether personal or business, exposes corporate assets to the risk of accidental loss, theft and dissemination. Therefore, employers must take care to adopt all appropriate measures to ensure sufficiently high levels of safety in full compliance with all applicable regulations in such circumstances.
On the basis of the considerations set out above, which in any case merit further investigation, it does not appear possible for an Italian employer to intervene directly on the personal electronic devices of its employees in the same way as the European Commission. However, defining, adopting and updating policies over time that regulate the use of work tools or the use of personal devices – during, for example, rest times during the working day – appears to be a fundamental measure that companies should consider in the broader definition of the strategic plan for the protection of both corporate assets and the parties that make up the reference organisation.
The Court of Cassation, with its ordinance no. 10404 of 1 June 2020, in line with a consolidated orientation, expressed the principle based on which Inial’s recognition of an occupational injury or disease does not automatically lead to the employer’s liability for the damages suffered by the employee.
Facts of the case
An employer of a transport company sued in order to obtain compensation for personal injury caused by a pathology (afantrite) he had, contracted – according to him – due to the employer’s breach of the safety obligation established by art. 2087 of the Civil Code.
The territorially competent Appeal Court, in confirming the first instance ruling rejecting the presented appeal, underlined that the worker had omitted to provide proof of the alleged breach while the defendant company had proven “to have complied in time with all of the legal requirements related to occupational safety”.
The worker appealed to the Court of Cassation relying on two motives that the company challenged with a counterclaim.
The Supreme Court of Cassation’s decision
In formulating its decision, the Court of Cassation first noted that (i) the entrepreneur’s liability for failure to adopt suitable measures to protect the physical integrity of the employee is based on specific laws, and if they are not available, on the general provisions as per art. 2087 of the Civil Code. These provisions constitute the final regulations of the accident prevention system that can be extended to situations and cases not yet expressly considered and assessed by the law at the time it was created.
However, according to the Cassation judges, this does not amount to liability every time an occupational disease is diagnosed in a worker. In the presence of such circumstances, the worker has the onus of proving the fact that constitutes the employer’s breach and the material causal nexus between the breach and injury.
In the case in hand, according to the Court of Cassation, the worker did not provide proof of the employer’s alleged breach and, actually, his employer company demonstrated to have complied with all of the legal obligations regarding safety.
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The Court of Cassation’s decision in question is in line with the recent circulars 13 and 22 issued by INAIL on 3 April 2020 and 20 May respectively related to equating Covid-19 contagion with cases of occupational injuries.
But there is more. The decision is also consistent with the regulations as per art. 29 bis by Law no. 40 of 5 June 2020 converting the Liquidity Decree, concerning employer obligations for protection against contagion from Covid-19.
The article states that, in order to protect against the risk of Covid-19 contagion, employers shall comply with the obligation as per art. 2087 of the Civil Code through (i) application of the provisions contained in the joint protocol which regulates measures to combat and contain the spread of Covid-19 in the workplace, signed on 24 April 2020 by the Government and social partners as subsequently amended and supplemented, and in other protocols and guidelines referred to in art. 1, paragraph 14, of Decree Law no. 33 of 16 May 2020, and also by (ii) adopting and maintaining in force the measures provided for therein.
If the aforementioned provisions do not apply, according to the above legislation, the relevant measures will be those contained in the sector protocols or agreements entered into by the trade unions and employers’ organisations that are comparatively more representative at national level.
Other related insights:
Il diffondersi del nuovo virus COVID-19 (cd coronavirus) impone alle aziende di aggiornare il Documento di Valutazione dei rischi (cd DVR), tracciando il nuovo rischio biologico ad esso collegato. Ciò in quanto il datore di lavoro: (i) ai sensi dell’art. 2087 cod. civ., ha il dovere di apprestare tutte le misure di sicurezza al fine di garantire l’integrità fisica e la personalità morale dei dipendenti e (ii) ai sensi del D.Lgs. 81/2008 ha la responsabilità di tutelare i lavoratori dall’esposizione a rischio biologico con la collaborazione del Medico Competente, ove presente. Il datore di lavoro deve individuare misure di prevenzione e prevedere sessioni formative specifiche per i lavoratori coinvolti. Resta inteso che tra le misure di prevenzione da implementare vi sono quelle fornite dal Ministero della salute, tra le quali si annoverano le seguenti: (i) lavarsi frequentemente le mani; (ii) evitare contatti ravvicinati con persone che soffrono di infezioni respiratorie acute; (iii) non toccarsi naso, bocca e occhi con le mani; (iv) pulire le superficie con disinfettante a base di cloro o alcol; (v) evitare contatti con persone che presentano sintomi simil influenzali.
The Court of Cassation, under ruling no. 22367/2019, reiterated a well-established view that, although the choice of the type of applicable national collective bargaining agreement is a matter for the employer, the latter must express and prove its decision unequivocally.
Facts of the case
The case in question
concerns the dismissal of a worker at the end of a continuous period of illness
lasting 237 days, justified as having exceeded his sick leave.
Both the Court of First Instance and the Court of Appeal with territorial
jurisdiction had agreed that the service industry (collective agreement in
force at the time of employment), which provided for sick leave of 180 days,
could not be applied to the employment contract in question. The Confail
Confimea collective agreement, which provided for sick leave 365 days, was
considered applicable. According to the courts of first instance, the company
had not proven its membership to Confcommercio nor could the references
reported in the letter of employment and payslips be considered sufficient to
prove said membership, given that the company had not produced the National
Collective Bargaining Agreement of the service industry. The courts of first
instance – given that the collective agreement of reference, for the purposes
of identifying that the sick leave is that in force at the time of dismissal –
also considered the National Collective Bargaining Agreement invoked by the
worker to be applicable to this case. The dismissal was declared unlawful and
the company was ordered to reinstate the worker and pay compensation under
Article 18 of Law No 300/70.
The company appealed to the Court of Cassation against the decision of the Court of Appeal, relying on two pleas.
The decision of the Court of Cassation
The company pleaded:
The Court of Cassation declared both pleas unfounded.
Firstly, the Court of Cassation pointed out the principle according to which collective bargaining agreements that have not been declared effective “erga omnes” pursuant to Law no. 741 dated 14 July 1959, apply only to individual contracts between persons registered with the stipulating associations or between persons who have expressly adhered to the collective agreements and have implicitly accepted them through conclusive conduct, reflected in the constant and prolonged application of the relative clauses to individual contracts (please see Cass. 10632/2009).
Furthermore, with reference to this principle, the Court of Cassation observed that, if one of the parties refers to a clause of a given National Collective Bargaining Agreement that is not effective “erga omnes“, basing itself on the importance that both have always been inspired by it to govern their contract, the court of first instance is responsible for specifically assessing the conduct of the employer and worker (please see Cass. 10213/2000).
In addition, the Court of Cassation confirmed that the employer, in the event of an appeal against a dismissal, must prove, pursuant to Article 5 of Law 604/1966, the facts constituting the legitimate exercise of the power of dismissal which, in this case, also includes the exceeding of sick leave under the terms of the collective bargaining agreement of the applicable sector.
In view of all the above, the Court of Cassation, in confirming the decision on the merits, pointed out that the company had not proven its membership of Confcommercio, nor had it been a consortium member and/or a member of Federdistribuzione – circumstances that could have proven the applicability of the National Collective Bargaining Agreement of the service industry.
Also according to the Court of Cassation, the courts of first instance also correctly considered it unsuitable to prove the applicability to the present case of the National Collective Bargaining Agreement of the service industry, its reference in the employment contract or in the payslips bearing the references of institutions specific to that contract. Thus, the employer had never produced any specific bargaining agreement. Therefore, the National Collective Labour Agreement in force at the time of dismissal, i.e. the Confail/Confimea agreement, produced by the worker and more consistent with the company’s corporate purpose, must be considered applicable to the employment contract in the case in question, as can be inferred from the certificate f incorporation in the deed. The Court thus dismissed the company’s appeal.
