REMARKS OF THE JUDGMENT OF THE FIRST CIVIL SECTION OF SUPREME COURT NO. 18319 OF 2012 “THE SUPREME COURT DOES NOT WANT TO ARBITRATE”
With the judgment n. 18319 of 2012, filed on October 25, 2012, the First Civil Section of the Supreme Court, President Dr. Maria Gabriella Luccioli, has established the invalidity of the arbitration clause in employment relations implied by professionals.
According to the judgment, you can defer the decision to a court of arbitration only in the case of an explicit forecast by the contracts and collective labor agreements and provided this is done, not to be void, without prejudice to the faculty of the parties to the judicial authority.
In specific to the facts, with arbitration of November 7, 2001, made executable, the Arbitration Committee provided for in the convention concluded on the September 9, 1997 between the ASL ( … ) of Locri and Dr. A. S. I declare unjustified the unilateral termination of the company, as well as assured the convention for the provision, by the trader of a specialized angiology service for failure of the same that is condemn to claim damages against the S. damages in overall measure of £.172.985.000.
“The appeal of the ASL was rejected by the Court of Appeal of Reggio Calabria with judgment of September 3, 2009, which remarked: (a) between the parties elapsed a contract for the provision of professional work with the connotations of the dependence, therefore devolved to ordinary jurisdiction, also because the performance had to be carried out personally by the professional, and was not therefore configurable by granting to a public service; (b) the parties to the convention had provided for a resolution of any disputes of arbitration, not emerging from the acts of any element such as to induce the confirmation of a mandate for the completion of a peculiar activity negotiation of an amicable arbitration; (c) was clearly the failure of the ASL because with the failure of 20 January 1998 had revoked the assignment without any valid reason, necessary documentary proof denied that necessary machinery were bought for the execution of direct service.
In specific to the facts, with arbitration of November 7, 2001, made executable, the Arbitration Committee provided for in the convention concluded on the September 9, 1997 between the ASL ( … ) of Locri and Dr. A. S. I declare unjustified the unilateral termination of the company, as well as assured the convention for the provision, by the trader of a specialized angiology service for failure of the same that is condemn to claim damages against the S. damages in overall measure of £.172.985.000.
“The appeal of the ASL was rejected by the Court of Appeal of Reggio Calabria with judgment of September 3, 2009, which remarked: (a) between the parties elapsed a contract for the provision of professional work with the connotations of the dependence, therefore devolved to ordinary jurisdiction, also because the performance had to be carried out personally by the professional, and was not therefore configurable by granting to a public service; (b) the parties to the convention had provided for a resolution of any disputes of arbitration, not emerging from the acts of any element such as to induce the confirmation of a mandate for the completion of a peculiar activity negotiation of an amicable arbitration; (c) was clearly the failure of the ASL because with the failure of 20 January 1998 had revoked the assignment without any valid reason, necessary documentary proof denied that necessary machinery were bought for the execution of direct service.
Reading this judgment in the light of the current regulatory framework would be possible to identify an advantage and an unworthiness.
The first way in which the courts have strictly applied article 808, paragraph 2 c. c. p. .
In the judgment says that it was a coordinated performance, ongoing and predominantly staff, due to the provision of article 409, n 3, c. c. p.
For this reason finds application of article 808, paragraph 2, current text to the effect of the art 3 Law No 25 of 1994 on the basis of which “the disputes referred to in article 409 may be decided by arbitrators only if this is specified in the contracts and collective labor agreements provided this is done, not to be void, without prejudice to the parties’ having the power to bring the case before the judicial authority …. “‘ for such disputes, including both those of subordinate work (n 1. ), and those of self-employment, that are expressly assimilated from the forecast of 3 in the area of the protection of the case, the arrangement referred to in Article 808, second paragraph, c. c. p. admits the possibility to insert the arbitration clause, with certain limitations, only to the contracts and the collective agreements.
In the judgment says that it was a coordinated performance, ongoing and predominantly staff, due to the provision of article 409, n 3, c. c. p.
For this reason finds application of article 808, paragraph 2, current text to the effect of the art 3 Law No 25 of 1994 on the basis of which “the disputes referred to in article 409 may be decided by arbitrators only if this is specified in the contracts and collective labor agreements provided this is done, not to be void, without prejudice to the parties’ having the power to bring the case before the judicial authority …. “‘ for such disputes, including both those of subordinate work (n 1. ), and those of self-employment, that are expressly assimilated from the forecast of 3 in the area of the protection of the case, the arrangement referred to in Article 808, second paragraph, c. c. p. admits the possibility to insert the arbitration clause, with certain limitations, only to the contracts and the collective agreements.
The second, if one defines, given that the Supreme Court could not apply the law in force at the time of the facts, would be to not take into consideration the legislative innovation made by the so-called Connected Work 2010, Law November 4, 2010 n 183. Indeed, it should be considered on the basis of Article 31 of the new legislation the legislature that attempted to revitalize the institution of arbitration in the field of employment by the four modes of recourse to arbitration once the dispute arise:
1 An amicable arbitration under the attempt at conciliation at the Provincial Directorate of Labor, provided by the new art. 412 et seq. ;
2 Arbitration at the premises and with the conditions laid down by collective agreements signed by the unions more representative, provided by the new art. 412-ter c. c. p. ;
3. An amicable arbitration with the procedures laid down in article. 412-c c. c. p. ;
4 An amicable arbitration with certification bodies referred to in Article 76 of the Legislative Decree n. 276/2003; as well as through the introduction of the much discussed faculty for individual parties to conclude arbitration clause times to devote to arbitrators the resolution of future disputes relating to their employment.
The new art. 412-ter code stipulates that the conciliation and arbitration can also be carried out at the premises and in the manner provided for by collective agreements signed by the associations most trade union representative.
In addition, the art. 412-c code stipulates that, without prejudice to the right of each of the parties to refer matters to the judicial authorities or to take advantage of the other procedures of conciliation and arbitration provided for by law, labor disputes can be proposed before a “panel of conciliation and arbitration disputed”, specially constitutes as provided for by the abovementioned provision with the procedure referred to therein.
1 An amicable arbitration under the attempt at conciliation at the Provincial Directorate of Labor, provided by the new art. 412 et seq. ;
2 Arbitration at the premises and with the conditions laid down by collective agreements signed by the unions more representative, provided by the new art. 412-ter c. c. p. ;
3. An amicable arbitration with the procedures laid down in article. 412-c c. c. p. ;
4 An amicable arbitration with certification bodies referred to in Article 76 of the Legislative Decree n. 276/2003; as well as through the introduction of the much discussed faculty for individual parties to conclude arbitration clause times to devote to arbitrators the resolution of future disputes relating to their employment.
The new art. 412-ter code stipulates that the conciliation and arbitration can also be carried out at the premises and in the manner provided for by collective agreements signed by the associations most trade union representative.
In addition, the art. 412-c code stipulates that, without prejudice to the right of each of the parties to refer matters to the judicial authorities or to take advantage of the other procedures of conciliation and arbitration provided for by law, labor disputes can be proposed before a “panel of conciliation and arbitration disputed”, specially constitutes as provided for by the abovementioned provision with the procedure referred to therein.
In conclusion, the judgment in each case neglects the timelines and the actual potential in arbitration, in matters of employment.
On the contrary, the use of arbitration has at least two advantages: first, it’s fast; and, secondly, avoids burden on the resources of the judiciary. The use of the arbitration can bring questions about the security guaranteed for employees: it will be as strong as offered by recourse to the courts?
An interesting scientific article answers this question. The article investigates the effect of the introduction of arbitration binding work within a large American company. The company in question (more than 100 thousand employees spread in more than thousand places of work) has introduced in 2004 a system of remedies in various stages. When an employee has a complaint, first they have to report it to the manager.
If they’re unable to resolve it, the employee may refer to the head office.
Even if this action fails, the employee may refer to the arbitrator (and never, it has to be noticed, to judge).
The company has collected data (answers to questionnaires) that allow you to measure the effect of the introduction of the arbitration procedure in the workplace: every year in fact, requesting employees to answer questions of various types, for example: “My manager treats all employees in the same way without discriminating based on differences of race, sex, or age”. Questions like this reflect the perception of compliance with the standards (in this case standards of anti discrimination) in the workplace. Or “If I have a problem, i feel free to ask for help from my superior.” Questions like this tell us about the perception of justice interactive, informal in the workplace. Or even “I believe that this company is dedicated to resolving quickly and impartially problems or concerns of employees”.
Questions like this reflect the perception of justice formal procedure at work.
The study analyzes how the answers to these questions change after the introduction of the binding arbitration. It is estimated that the perception of formal justice procedure decreases. This suggests that workers perceive less dedication to the company, understood as central entity, satisfactory resolution of disputes. At the same time, however, increases the perception of compliance with the rules and even the perception of interactive/casual justice.
This suggests that employees perceive an improvement of climate in the workplace, at the level of individual place of employment, and greater confidence on their superiors, after having introduced the binding arbitration.
On the contrary, the use of arbitration has at least two advantages: first, it’s fast; and, secondly, avoids burden on the resources of the judiciary. The use of the arbitration can bring questions about the security guaranteed for employees: it will be as strong as offered by recourse to the courts?
An interesting scientific article answers this question. The article investigates the effect of the introduction of arbitration binding work within a large American company. The company in question (more than 100 thousand employees spread in more than thousand places of work) has introduced in 2004 a system of remedies in various stages. When an employee has a complaint, first they have to report it to the manager.
If they’re unable to resolve it, the employee may refer to the head office.
Even if this action fails, the employee may refer to the arbitrator (and never, it has to be noticed, to judge).
The company has collected data (answers to questionnaires) that allow you to measure the effect of the introduction of the arbitration procedure in the workplace: every year in fact, requesting employees to answer questions of various types, for example: “My manager treats all employees in the same way without discriminating based on differences of race, sex, or age”. Questions like this reflect the perception of compliance with the standards (in this case standards of anti discrimination) in the workplace. Or “If I have a problem, i feel free to ask for help from my superior.” Questions like this tell us about the perception of justice interactive, informal in the workplace. Or even “I believe that this company is dedicated to resolving quickly and impartially problems or concerns of employees”.
Questions like this reflect the perception of justice formal procedure at work.
The study analyzes how the answers to these questions change after the introduction of the binding arbitration. It is estimated that the perception of formal justice procedure decreases. This suggests that workers perceive less dedication to the company, understood as central entity, satisfactory resolution of disputes. At the same time, however, increases the perception of compliance with the rules and even the perception of interactive/casual justice.
This suggests that employees perceive an improvement of climate in the workplace, at the level of individual place of employment, and greater confidence on their superiors, after having introduced the binding arbitration.
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