On 12 August 2018, the conversion law No. 96/2018 of Decree Law No. 87/2018 (the so-called Dignity Decree) came into force, which, among other things, reintroduced the crime of fraudulent staff-leasing with Article 38 bis of Legislative Decree No. 81/2015.
Said offence – already provided for by the Biagi Law No. 276/2003 and then abrogated by the Jobs Act – occurs in all those cases in which “the provision of staff leasing is carried out with the specific goal of circumventing mandatory rules of law or collective bargaining agreement applied to the employee”.
The offence in question is punishable both for the client company and for the staff leasing agency with criminal penalties and a fine of 20 euros for each worker involved and for each day of staff leasing implemented.
In any case, the application of Article 18 of Legislative Decree No. 276/2003 remains unaffected, which punishes only the client company with an administrative fine of 50 euros for each worker employed and for each day of employment. The above fine cannot, in any case, be less than EUR 5,000 nor more than EUR 50,000..
That said, the National Labour Inspectorate (“INL”), with circular No. 3 dated 11 February 2019, reviewed the various cases in which fraudulent staff leasing may occur.
Unlawful Contract
The fraudulent staff leasing offence may take place, first of all, through the unlawful use of contract negotiations.
An unlawful contract occurs when the contract is entered into in the absence of the requirements established by Article 1655 of the Italian Civil Code, in order to circumvent mandatory legal or contractual provisions (see circular of the Ministry of Labour 5/2011).
In the event of such an offence, labour inspectors must adopt compulsory requirements against:
- the fictional client and fictional contractor, by issuing a warning to the immediately termination the unlawful action;
- the fraudulent client, aimed at regularising the employment of its employees.
In addition, a formal notice with warning of inspection may be issued against the fraudulent client-user for the amounts accrued by the employees working under the contract for unpaid wage differences.
Other scenarios
According to INL, the offence of fraudulent staff leasing may also occur beyond the case of unlawful contracts. In particular, it may occur:
- in the context of personnel posting involving a circumvention of the rules set forth in Art. 30 of Legislative Decree No. 276/2003, or
- in the case of “fake” transnational posting pursuant to Article 3 of Legislative Decree No. 136/2016 or
- even involving authorized staff-leasing agencies.
By way of example, INL identified as fraudulent staff leasing the case in which an employer dismisses one of its employees to reuse him/her through a staff-leasing agency, in breach of the law or collective agreement.
Penalties
In the event of unlawful contract and posting, as established in Article 38 bis of Legislative Decree No. 81/2015, the administrative penalty set out in Article 18 of Legislative Decree No. 276/2003 will apply and the inspectors will have to:
- notify the administrative breach as per Article 18 of Legislative Decree No. 276/2003;
- adopt the mandatory requirements to stop the unlawful conduct by ordering the hiring of the workers directly by the client company for the term of the contract.
INL specifies that the administrative penalty referred to in Art. 18 is not subject to the warning procedure.
Where the inspectors identify a fraudulent purpose, it will also be possible to apply a warning of formal inspection.
If the fraudulent intent is identified in the case of staff leasing in compliance with the regulatory provisions, only the penalty referred to in Article 38 bis of Legislative Decree No. 81/2015 will apply, with the consequent adoption of the mandatory requirements and the warning notice of inspection against the client company.
Finally, even in the case of fake transnational posting, the penalty set out in Art. 38 bis of Legislative Decree No. 81/2015 will apply, insofar as the posting, as sometimes happens, is meant to circumvent the internal regulations and/or the collective agreement applied by the Italian client.
In particular, in order to constitute a breach of Article 38 bis, it is not sufficient to ascertain that the conduct led to the elusive application of the foreign social security system, but it is also necessary to ascertain the violation of the obligations of the employment terms set forth in Article 4 of Legislative Decree No. 136/2016.
Intertemporal regime
Legal literature and case-law agree in considering fraudulent staff leasing a permanent offence, considering that the behaviour is characterised by the intention to by-pass contractual or mandatory regulations and that it occurs when there is a perceivable level of continued unlawful actions.
According to the National Labour Inspectorate (INL), the permanent nature of the offence means that the breaking of the law lasts for the entire duration of fraudulent staff leasing, giving that it occurs at the time of termination of the illegal conduct.
Consequently, according to the principles set out in Article 1 of the Criminal Code (“no-one shall be punished for an act that is not expressly defined as a criminal offence by the law, nor with penalties which are not established by it”) and 2 (“no-one shall be punished for an act that, according to the law in force at the time in which it was committed, it did not constitute a criminal offence”) as well as per case-law trends, it must be deemed that, in the case of fraudulent staff leasing that started prior to 12 August 2018 and continued after that date, the offence referred to in Article 38 bis of Legislative Decree No. 81/2015 can only occur effective from 12 August 2018, with the consequent assessment of the related penalty only for the days following said date.
For the period prior to 12 August 2018, the exclusive application of the penalties set forth in Art. 18 of Legislative Decree No. 276/2003 remains in force.
