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International Employment - Italy

posted 1 year ago

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Massimo Lupi

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Massimo Lupi
Lupi & Associati

L&A is the law firm I founded in 1986. Today the firm includes 5 partners and 12 associates. We cover any aspect of labour law including spillover into social security law. A particular focus is dedicated to the pharmaceutical & life sciences sector where we assist almost 30 companies, both domestic and multinational, as well as many other companies in different sectors of activity.

An interesting niche sector we take care of is international labour, where we assist clients in problems arising when a manager is hired in one country in order to be moved with a secondment contract in another country, or in more countries, and several issues like salary and social security need to be harmonised.

Pandemical problems have had a strong weight and “priority one” during the past 2 years, trying to meet the need of reorganisation coming from the clients (smart working issues, restructuring sectors of activity, collective dismissal and so on). Currently, with the strong economic recovery we are hopefully facing, we are very active in transfer of undertakings in the pharmaceutical sector, which not only includes labour contracts, but also agents’ network, licenses and so on.

60 years ago, an Italian journalist asked French President C. De Gaulle “Mr President is it so difficult to rule and govern France?” De Gaulle answered “My friend, how can you think to govern a country with 244 different kinds of cheese?” Well, in Italy we have almost 15 different models of labour contracts. Legal frame changes depending on the period when a contract has been signed, the dimension of the company, the nature of the contract itself… and we could go on. We went through different periods where a protective legislation was aimed to defend and emphasise workers’ rights, and other periods where the employer’s interest in a more flexible system has been taken into account. On the top there is an extreme formalism that still characterises the courts’ decision.

In such context only a deep knowledge of the law can help to successfully manage the problems you may meet, in order to drive your client beyond.

This has been the “issue of the day” for the past two years. A rudimentary legislation (but still complicated) had been issued many years before Covid 19, but it proved inadequate when tested in practice. An emergency legislation has been issued, simpler and more effective, and it worked decently. Therefore, it has been extended over the emergency period and it is still in force. Remote or hybrid working was adopted for the majority of workers. Now after the end of the emergency, this has become a right increasingly claimed by workers, especially by mothers with young children.

The main problem we went through was the need to suspend from “working in presence” the workers who refused vaccination, but at the same time the ban on dismissal enacted by the emergency law.

The not always straightforward interpretation given by the court on concurrent laws has complicated the legal frame.

Among the lasting impact we may cite the change in companies’ organisation. In fact, physical workplaces have decreased, and along with this, the need for large offices or prestigious locations.

It is an organisational change that took the crisis as a starting point but now it goes far beyond the pandemic phenomenon.

Social issues generate a permanent debate, but the outcome is unfortunately lower than the dimension of such debate may lead to expect. Governance is a very heavy duty in my country, and in our firm, we have a department taking exclusive care of governance issues. I label it as heavy duty because sources of law in my country lead to a bureaucratic declination of possible solutions which is often ineffective or disproportionate to the expected result.

Environmental issues could have been stressed by the Ukrainian war (as an occasion to save energy rather than to make recourse to less polluting sources), but at this moment I am afraid that the call for energy “whatever it takes” will lead to shelving the problem for better times.

When I was 36, I founded, with other colleagues, the Labour Law Commission within AIJA (Young Lawyers International Association). Still today I am an active member of U.I.A. (Union Internationale des Avocats) labour law commission. At the University of Parma (Faculty of Economy) I have held for the past 7 years a Seminar on Comparative Labour Law for foreign students attending the course. Other members of my firm are active in such organisations.

The network and contacts created along the years with colleagues of different jurisdictions help us in giving advice to our clients in different legal systems. This is of course helpful in order to assist our clients with their foreign branches.

Recently, on July 29, 2022 the Legislative Decree n° 104/22 was enacted, and entered in force on August 13th. It governs information that employers and principals are required to provide to employees on the essential elements of the employment relationship and on working conditions and related protection.

The Decree was enacted to transpose Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019.

The Decree dedicates some precise provisions to the institution of the probationary period, the coexistence of employment (i.e. the exclusivity clause), as well as on the subject of dismissal. In a short time limit the contracts which do not fulfil these prerogatives will have to be supplemented.

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