As described in our previous article (“Significant Changes On Employment Disputes”, published on March 19 2010), Parliament has approved a significant piece of legislation - the Collegato Lavoro - which affects several aspects of employment law, amending existing provisions and introducing new regulations.
The Collegato Lavoro has had an arduous journey into law, and certain provisions were amended in light of recommendations issued after the president's review of the original draft. Parliament approved the amended text on October 19 2010. It was published in the Official Journal on November 9 as Law 183/2010, and will enter into force 15 days after publication.
The main changes introduced by the Collegato Lavoro - and described in our earlier article - relate to arbitration, preliminary steps in employment litigation and the dismissal appeals procedure. This article highlights both Parliament's main amendments to the original text and the new rules on the certification of employment contracts, as confirmed in the final text.
The Collegato Lavoro allows parties to choose arbitration instead of litigation where a national collective agreement so provides. However, disputes relating to dismissal must be decided by the competent labour court.
The Collegato Lavoro also provides that parties to an individual employment contract may include an arbitration clause to apply to any future disputes. However, unlike the original draft, the approved version states that such a clause cannot be included in the employment agreement; rather, it must be agreed and signed after the employee's probationary period or, failing this, 30 days after the start of the employment relationship. Furthermore the approved version Collegato Lavoro also expressly excludes that the parties may provide an arbitration clause to apply to disputes on dismissal.
Dismissal Appeals Procedure
One of the amendments included in the final text extends the period during which an employee may challenge his or her dismissal. Whereas the original draft allowed an employee 180 days to carry out the second step of the dismissal appeals procedure, he or she is now given 270 days.
The steps of the new dismissal appeals procedure can be summarized as follows.
As previously, an employee who is dismissed has 60 days in which to challenge his or her dismissal. However, the previous regulations allowed an employee to sue his or her former employer in the labour courts several years later. The Collegato Lavoro provides that within 270 days of communicating his or her challenge to the dismissal, the employee must file a complaint before the competent labour court.
Alternatively, he or she must request arbitration or a meeting before the labour office (direzione provinciale del lavoro), which is now optional, not mandatory as in the past.
If the employee requests arbitration or a meeting before the labour office and either the alternative procedure fails to resolve the dispute or the employer refuses to participate, the employee has 60 days in which to file a complaint before the competent labour court.
This procedure also applies to:
- claims for the reclassification of a temporary employment agreement as a permanent employment agreement, in which case the 60-day period starts from the termination of the agreement;
- claims for the reclassification of certain consultancy agreements as permanent employment agreements, in which case the 60-day period starts from the termination of the agreement; and
- claims that challenge an employee's transfer, in which case the 60-day period starts from the date on which the employee is notified of the transfer.
Certification of Employment Contracts
The Collegato Lavoro introduces new rules on the certification of employment contracts by specific commissions (as required by Law 276/2003, known as the Biagi Law). Such certification seeks to minimize litigation arising from the classification and interpretation of contracts or specific contractual clauses.
Parties to an employment agreement may request the commission's assistance and advice in seeking to define - within the agreement - a list of grounds for dismissal (ie, breaches or failings on the part of the employee) which, in that specific case, constitute just cause or a justified subjective reason for dismissal.
Such a list could be particularly significant for key employees or managers who, because of their roles within a company, need to be held to an higher standard of performance, loyalty or confidentiality. In such cases it could prove useful to make express provision for failings or breaches which justify dismissal, especially as the Collegato Lavoro would require the labour court to consider the listed reasons for dismissal in deciding any subsequent dispute.