Legislative Decree No. 136/2016 is applied in cases of provision of services with elements of transnationality – such regulation source defines, among others, the requirements for posting and seconding companies, as well as how to manage the work activity rendered under such a regime. Below is a brief analysis of the relevant elements that must be considered when performing services in Italy through workers from other states. Within a business activity, it is not uncommon to use staff from outside the company through a secondment or a service contract. As long as both activities are based in Italy, there is nothing to prevent the entrepreneur's interest from requiring a contribution from workers from foreign companies who can provide the required service. Legislative Decree No. 136/2016 applies where the scenarios just described occur. However, it shall be noted that this legislation deals not only with just the posting of employees but also with all services that are characterised by elements of transnationality: contracting, subcontracting or, more generically, all commercial agreements that have as their object the exchange of services between companies that - and this is the fundamental element for the application of the Decree at stake - are established in different Countries from each other. Moreover, the Decree applies, other than to companies based in another Member State of the European Union, also to third Countries outside the EU – in such cases, the applicability to such companies of the penalty regime provided for in Section 12 et seq. as well as the joint and several liability regime (see Section 4, par. 4, Legislative Decree no. 136) are excluded. In any case, it is always necessary to remember that the typical elements of the posting remain required for its validity and effectiveness, namely: the interest of both companies involved, the temporary nature of the service rendered at the seconding party, the performance of specific and well-defined work activity, from which the need to resort to this agreement derives. More specifically and regarding cases of intra-group secondment, or work activities carried out between companies that are both parties to a network contract, the existence of the interest of the latter towards the implementation of the secondment can be considered assumed, given the close connection between these companies (Italian Ministry of Labour and Social Policies, ruling no. 1/2016; Italian Supreme Court, decision no. 8068/2016). In general, the principle of equality must also be applied to the service carried out under the posting regime, by which, during the period of posting, the worker must be granted with the same (if not better) working and employment conditions provided in Italy by regulatory provisions and collective agreements for workers carrying out similar subordinate work in the place where the posting takes place, limited to specific, essential for the management of the employment relationship matters, listed by the norm itself (e.g., maximum work periods and minimum rest periods; remuneration, including overtime bonuses; health and safety in the workplace; equal treatment of men and women; and other non-discrimination provisions). About the requirements, the company posting workers to Italy is obliged to give notice to the Ministry of Labor and Social Policies within 24 hours before the start of the activity thus rendered, specifying the relevant terms and conditions, as well as to keep, until two years after its termination, all documentation appertaining to it. Regarding safety in the workplace, the provisions of Legislative Decree No. 81/2008 still apply; such norm prescribes that, in the cases of posting of workers, all prevention and protection obligations burden the seconding party, except for the duty of the latter to inform and train the employees on the typical risks generally related to the performance of the tasks for which they are posted. The seconding party is also obliged to provide for the reporting of accidents and occupational diseases. At the same time, the employee is merely required to give prompt notice to the employer of the accidents. If the posting is unlawful, the posted employees will be considered employed by the company that used their services. In addition to the above, it is possible that the posting is declared illegitimate due to the criminal purposes pursued through its execution by the parties involved. In such cases, said intents may refer alternatively to the case described by Section 38-bis, Legislative Decree no. 81/2015 (so-called fraudulent supply of manpower), aimed at protecting the employee whenever there is an attempt to circumvent mandatory rules of law or collective agreement applied to the employment relationship; or to the conducts aimed at evading the contribution due to the competent entities about such relationships, which remain, instead, subject to the discipline of fraud (Section 640 of the Italian Criminal Code, paragraph 2, no. 1; see Supreme Court, Sec. II, decision no. 9758/2020). Therefore, while the latter conducts, aimed at eluding the payment of tax and contribution charges in favour of less burdensome regimes in the other Member States, will be subject to the criminal regime relating to the crime of fraud, the fraudulent violation of the employees’ working conditions will be punished only with the application of sanctions of administrative nature.
2024 - Morri Rossetti
