The National Labour Inspectorate (“INL“), with note 5398/2019provided its opinion regarding a hypothesis of transnational posting of workers, carried out by a company established in an EU country in favour of its own production unit located in Italy.
Case in question
The inspectors objected to a case of non-authentic posting, pursuant to Article 3, paragraph 5, of Legislative Decree 136/2016, against the same employer that assumes the role of host and home organisation.
Although the inspectors found two distinct illegal acts – posting of workers by the company’s head office and their use by the Italian head office of the same company – they attributed them to a single subject, since they could not identify two different employers.
Legislation of reference:
Article 3, paragraph 5, of Legislative Decree 136/2016 provides that “in the event that the posting is not authentic, the posting agent and the subject that has used the services of the posted workers shall be punished with a pecuniary administrative sanction of 50 Euro for each worker employed and for each day of employment“.
The home organisation’s conduct in posting workers is thus punished, as is that concerning the use of the same workers by the host company.
The question has therefore arisen as to whether the only subject – host and home organisation – should be sentenced to the double penalty, in view of the double infringement.
The conclusions of the INL
Before going into the matter, the INL pointed out that the production unit of a given company can be considered as an autonomous secondary office against which to dispute illegal acts and adopt relative sanctions, only if it constitutes a separate centre of responsibility. This is the case when the secondary office/production unit is a mere representative office, with exclusively promotional and advertising functions, for the collection of information, scientific or market research, or if, for example, it carries out a preparatory activity for the opening of an operational branch.
In other words, in the opinion of the INL, the secondary office of a company may be considered as a separate legal entity if it is registered in the commercial register and identified in Italy through its own legal representative.
In this case, again according to the INL, it would seem that there is no other relationship between the home organisation and the host company, since the workers are sent from the main office of the foreign home company to its own production unit in Italy, which is not an autonomous legal representation managed exclusively by a person appointed by the same head office.
In view of the above, in this case, given that the affiliation of the home organisation and the host company belong to the same employment organisation, only one penalty is applicable, to be imposed on the only subject endowed with legal status, i.e. the home organisation.