Recently published in the Official Gazette (O.J. Dec. 9, 2021, No. 292) was the Law Delegating the Government for the Efficiency of the Civil Process and the Revision of the Regulation of Alternative Dispute Resolution Instruments and Urgent Measures to Rationalize Proceedings in the Matter of Personal and Family Rights and in the Matter of Enforcement (Law No. 206 of Nov. 26, 2021).
Through the enabling act in question, the government was delegated to adopt, within one year, one or more legislative decrees enacting the formal and substantive reorganization of the civil process, through amendments to the Code of Civil Procedure and special procedural laws, in accordance with the objectives of simplification, expeditiousness and rationalization of the civil process, while respecting the guarantee of adversarial proceedings.
The changes to the labor rite.
In order to understand the proposed changes to the labor rite, it is necessary to start from the normative dictate of reference, namely Paragraph 11 of Article 1 of the enabling act, which stipulates that:
"In the exercise of the delegation of power referred to in Paragraph 1, the legislative decree or decrees amending the Code of Civil Procedure on labor disputes and social security shall be adopted in accordance with the following guiding principle and criterion: to unify and coordinate the regulation of proceedings for appeals against dismissals, including when issues relating to the qualification of the employment relationship are to be resolved, adopting appropriate transitional rules, providing that :
(a) the handling of dismissal cases in which an application is made for the reinstatement of the employee in the workplace shall be given priority;
(b) actions to challenge dismissals of members of cooperatives, including where it results in the termination of the membership relationship, are brought by appeal pursuant to Articles 409 et seq. of the Code of Civil Procedure;
(c) actions for the nullity of discriminatory dismissals, where they are not brought through an appeal pursuant to Article 414 of the Code of Civil Procedure, may be introduced, if the conditions are met, through the respective special rites referred to in Article 38 of the Code of Equal Opportunity for Men and Women, referred to in Legislative Decree No. 198 of April 11, 2006, and Article 28 of Legislative Decree No. 150 of September 1, 2011, establishing that the action, in either form, shall preclude the possibility of subsequently bringing the action through a different procedure. 198, and 28 of Legislative Decree No. 150 of September 1, 2011, stipulating that the bringing of the action, in one form or another, precludes the possibility of subsequently suing under a different rite."
First, the legislature's intention to want to harmonize the labor rite (presumably according to the rite set forth in Article 414 et seq. c.p.c.) and to make appeals - having as their object a dismissal challenge - aimed at obtaining reinstatement in the workplace a priority. This seems congruous with the need for expeditiousness given the character of urgency that characterizes this type of action. As for harmonization, the so-called Rito Fornero, a special rite for challenging dismissals, among other things already abandoned pursuant to Article 11 of Legislative Decree No. 23/2015 for all those workers falling, with reference to the date of hiring, under the so-called increasing protection system, thus seems to be destined for abrogation.
On the subject of dismissal for discriminatory reasons (see letter c above), the legislature seems to want to enhance the respective special rites; specifying, then, that once the appeal has been undertaken with one of the formulas available(ex 414 c.p.c. or special rite), it will not be possible to sue with the different rite not originally chosen. Thus remedying the possible proliferation of trials.
What's new in assisted negotiation.
Paragraph 4 of Article 1 indicates a set of regulatory principles and criteria regarding mediation and assisted negotiation.
Subparagraph (q) of Paragraph 4 reads verbatim: "toprovide, for the disputes referred to in Article 409 of the Code of Civil Procedure, without prejudice to the provisions of Article 412-ter of the same code, without this constituting a condition for the action to proceed, the possibility of resorting to assisted negotiation, provided that each party is assisted by his or her own lawyer, as well as, where the parties so deem, also by their respective labor consultants, and also to provide that the relevant agreement be assured the protected stability regime referred to in Article 2113, fourth paragraph, of the Civil Code."
In this way, the legislature clarifies the proposition that it also intends to expand the scope of the assisted negotiation procedure to individual labor disputes under Article 409 of the Criminal Code.
Most importantly, the negotiated agreement will be assured the regime of unobjectionability under Article 2113 of the Civil Code. Therefore, a successful negotiation concluded by the lawyer would produce the same effects as waivers and settlements that take place before certain third parties in so-called "protected venues."
In light of what is apparent from the normative dictate, this would be an option and not a condition of prosecution with respect to the bringing of court action.
Changes along these lines would undoubtedly bring some benefits to both parties; the latter, properly supported by the technical expertise of trusted attorneys, could succeed in settling a dispute quickly and with certainty, without having to turn to third parties, such as labor organizations or the Labor Inspectorate, speeding up the time and reducing the costs of any settlement.
