Ca’ Foscari University of Venice , Italy 29-30 September 2011

1. Strengtheningcooperationbetweenlabourinspectionsystemsand the judiciarythe judiciarypointofview Ca’ FoscariUniversityofVenice, Italy29-30 September 2011 Antonella Ciriello

2. The purpose of this presentation • International crisis of labour law • balance between protection of the market and protection of the workers • Opposite needs, contradictory regulations • Constant erosion of the worker’s rights • The ITALIAN NEW LEGISLATION AS an example Antonella Ciriello

3. Cooperationbetweenlaw system and worker’s rights • This could be the correct perspective • But it is influenced by the aforementioned economic factors. THE ROLE OF THE JUDGE Antonella Ciriello

4. THE RECENT NEW LAW • The labour law has recently been strongly innovated by law 183 / 2010, a law commonly defined as collegato lavoro Antonella Ciriello

5. Inspection measures VARIOUS MEASURES HAVE BEEN TAKEN: • THE COMPULSORY ORDER(PRESCRIZIONE OBBLIGATORIA) • THE COMPULSORY WARNING(DIFFIDA) • Also the special COMPULSORY WARNING called DIFFIDA ACCERTATIVA … Antonella Ciriello

6. La diffida accertativa • IT IS POSSIBLE, AFTER THIS COMPULSORY WARNING, TO OBTAIN JUDICIAL ORDER DIRECTLY IN FAVOUR OF WORKER COMPENSATION Antonella Ciriello

7. Art 33 the FIRST ENTRY INSPECTORREPORT (FEIR) • The aforementioned law estabishedspecific new rules for access of inspectors in the workplace and for the preparation ofa single report of the investigation. • This happens, of course, in the case of detection of violations of labour and social legislation from which administrative sanctions arise . Antonella Ciriello

8. the FIRST ENTRY INSPECTORREPORT • THE OBLIGATION TO PREPARE THE FEIR IS NOW PROVIDED BY LAW (PREVIOUSLY IT WAS RELATED TO SOURCES OF AN ADMINISTRATIVE NATURE) Antonella Ciriello

9. The first entry inspector report FEIR • IT MUST BE ISSUED IMMEDIATELY AND MUST INCLUDEa) the identification of a workers’intent regarding their their work and a description of what they are doing • b) a list of activities carried out by the inspection staff; c) any statements made by the employer TO THE INSPECTOR  d) any request, document, useful for further investigation as evidence in the future trial. Antonella Ciriello

10. An important point • The investigation report  must contain:the results of the investigation and the sources of evidence • IT IS AN IMPORTANT POINT IN ORDER TO AVOID PUBLIC ENTITY LOSING THE CASE! • THE NOTICE TO OFFER THE EMPLOYER THE POSSIBILITY OF PAYING AN INSTANT FINE, THUS AVOIDING A POSSIBLE HIGHER PENALTY Antonella Ciriello

11. Critical point • A critical point which may compromise the results of a labour inspection in the case of a trial is when the content of an inspection report is questioned. • Indeed, sometimes in their reports, inspectors refer to the worker’s statement without mention of what they have actually seen, but only a report of a statement(s) is written. • In this case the validity of the evidence brought to the court is very limited. Antonella Ciriello

12. the complaint of forgery Inspection reports are fully guaranteed (It. PienaProva) in terms of validity. This relates to complaints such as forgery. Specifically, the scope of the guarantee relates both to events that take place before a public officer and to the document itself, which is authored by the public officer in charge, in accordance with Art. 2700 c. c. and Cass. SS.UU. No 916 of 1996 Antonella Ciriello

13. What happens • MOST trials end (because of the aforementioned problem) with the rejection of the labour inspection observations. Antonella Ciriello

14. Prevalent court decisions • Indeed, accordingto the prevalent court decisions, when the report containsfactsthathappenednot in the presenceof the inspector, butas the resultofreferralsmadeby the workersthemselves, they are tobeconsideredcompletelyunrealiable, and hencenotvalid, evenassimpleassumption(s). Antonella Ciriello

15. In this perspective • This first prevalent approach  denies any validity to evidence contained in an inspection report where the inspectorhas reported facts that were not directly perceived by him/herself. (Cass. No 19092 of 2007; No12357 of 2003; No 9963 2002; No 2087 of 2002; No 317, 2002). Antonella Ciriello

16. To solve this delicate issue • The legislature established with the new law (collegato lavoro, art. 33 and subsequent articles) that the report must also contain all useful evidence in the trial. Antonella Ciriello

17. The next delicate issue:the certificationparadox • The same legislature that has strengthened the powers of the inspectors and taken care of preparing powerful evidence, allowing the public body to obtain favorable results in judgments against employers who violate the rules, has established rules that seem to contradict this RATIO . Antonella Ciriello

18. Certificationoflabourcontract • Certification of labour contract is an Italian legal procedure whose main function is to reduce legal disputes concerning the qualification of labourcontracts.. Antonella Ciriello

19. The importance of certification the correct qualification of a labour contract is a process of great importance, as different contracts provide considerably different levels of protection to the worker So there are a considerable amount of litigations about this problem. Antonella Ciriello

20. Indisponibilità del tipo The freedom of the parties to qualify their contractual labour relation is thus restricted, as they are required to fit into the abstract models provided by the law: employment contracts, quasi-subordinate employment contracts, or even self-employed contracts. The correct distinction between employment and self-employed contracts is essential, as the protection provided by the law for employment contracts are a matter of Constitutionallaw. Antonella Ciriello

21. two fundamental judicial decisions . In 1994,the Constitutional Court ruled: “the principles, the protections and the rights established by the Constitution for the safeguard of employees, are not negòtiable between the parties of the contract. Antonella Ciriello

22. Supreme Court • In 1999 the Supreme Court (in it.: “Corte di Cassazione”) stated that “any economically relevant human activity, even the humblest one, can be either carried out by employment contracts or by self-employed contracts ”. So, within the limits of the contractual qualification provided by the law, the parties are free to choose the type of contract underlying the performed activity or work. Antonella Ciriello

23. This procedure • was first introduced with the legge Biagi (276/2003) and revised with the collegato lavoro Antonella Ciriello

24. The issue: • The law (article 79, D. Lgs. 276/2003) establishes that the legal effects of Certification, which enforce the qualification and the regulation between the parties and toward third parties (Social Security Authorities as regards social security contributions;ItalianRevenueAgencyasregardstaxes; LABOUR MINISTER for labour law violations), stands unless the labour judge overturns Certification declaring it void. Antonella Ciriello

25. THE INSPECTION POWER… • as a general rule, if an inspection confirms a labour law violation, inspectors are entitled to issue administrative orders for the re-qualification of labour contracts, retrospectively to the starting date of work Antonella Ciriello

26. Effect toward the inspectors • Certification, however, produces its legal effects also before inspectors, who cannot therefore re-qualify a certified contract. Where there is a doubt about the correctness of its qualification or of its execution, they can appeal to a labour judge for a review of the decision handed down by the Commission. In the meantime, the certified contract still produces its legal effects. Antonella Ciriello

27. A focus on noncertified contracts • As a result of this with the General Directive of the Sept.18 2008, the Minister of Labour has requested labourinspectors to focus their inspections on non-certified contracts, unless • a written claim is filed by workers complaining about a violation of rightful labour protections • or where the incorrect actual execution of the contract is immediately ascertained Antonella Ciriello

28. WHERE IS THE PROBLEM? • To obtain employment, the worker is prepared to sign anything, and so it is possible that employers may take advantage of the worker’s “desperation to have a job” and hence the employees’ rights may be compromised Antonella Ciriello

29. problems • As explained above, if a third entity (e.g. social security institute, Ministry of Labour, Provincial Labour Directorate - the territorial body of the Ministry of Labour) decides not to appeal to the labour judge for review of the certified contract, it produces its legal effect(s) and the JUDGE is constrained to reject the administration’s request Antonella Ciriello

30. PROBLEMS • THE DUTY TO PAY CONTRIBUTION IS AUTOMATIC, IT COMES DIRECTLY FROM THE LAW WHERE THERE IS A RELATIOSHIP BETWEEN AN EMPLOYER AND A WORKER. • CAN THE CERTFICATION RUN AGAINST THIS FUNDAMENTAL PRINCIPLE? Antonella Ciriello

31. A CONTRADICTORY LAW • On the one hand, the law enhances the power of the labour inspector. • 0n the other, it obliges him or her to respect the decision of certified contract, until a judge had removed its effects. Could be possible to prepare an injunction before this pronunciation? Antonella Ciriello

32. Experts are divided • Mostsay no, a fewsay yes. • The problemsiscomplex, particularly in the area of freelance, short-term and part-time work (in this area the disperationtohave a job isincreasing) Antonella Ciriello

33. The judgeas last resort • In other words, it creates a sector in which the court is the "last resort" for actual, effective protection of rights since, according to similar criteria, the state inspection bodies risk becoming part of serious violations of the law, committed to the detriment of workers and also to claims of a contributory social security nature. Antonella Ciriello

34. antonella.ciriello@giustizia.it Thank you for your attention Antonella Ciriello