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:
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:
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:
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.
In its circular No. 17 of 31 October 2018, the Ministry of Labour has provided the first operational instructions on the application of Decree Law No. 87 of 12 July 2018, now converted into Law No. 96 of 9 August 2018 (“Dignity Decree”)
a) New rules for fixed-term contracts
First of all, the circular has taken a position on the changes made by the Dignity Decree to the rules governing fixed-term contracts pursuant to Legislative Decree 81/2015, with the maximum duration now reduced significantly from 36 months to 24 months.
On this point, the circular clarifies that the parties concerned have the option to freely enter into fixed-term contracts for a maximum duration of 12 months and, after such term, must indicate the specific reasons for the continuation of the contract, specifically:
As clarified in the circular, the calculation of the 12-month period must take into account the overall duration of all of the fixed-term contracts entered into by the employer and the employee, including those already ended and those to be extended prior to expiry. In this regard, the circular provides the following example: “Consider the case of a 10-month contract that is to be extended for a further period of 6 months. In such case, even if the extension period is added before the relationship exceeds the duration of 12 months, it will still be necessary to specify the reasons indicated above, since the overall length of the relationship will exceed such duration, as provided in article 19, paragraph 4, of Legislative Decree 81/2015”.
In any event, as provided in art. 19, paragraph 3, of Legislative Decree 81/2015, the parties will still have the option, once the 12-month limit has been reached, to enter into a new 12-month contract before the competent local Labour Inspectorate. The circular also clarifies, on this point, that the measures provided for in circular No. 13/2008 continue to apply, specifically:
– “verification of the formal completeness and accuracy of the contract’s contents” and
– “authenticity of the worker’s consent to enter into the contract, without this having any certification effect on the actual existence of the preconditions to be met under laws in force”.
According to the circular, the extension implies that the reasons for the fixed-term contract being entered into have not changed, excluding the case where the date needs to be extended within the expiry of the contract. The circular therefore clarifies that:
(i) a fixed-term contract cannot be extended if the reasons have changed, since this would result in a new fixed-term contract, which would be subject to the renewal rules, and
(ii) an extension cannot be considered as such when the new fixed-term contract starts after the expiry of the preceding contract.
A novel aspect compared to the Jobs act is the reduction in the number of possible extensions, from 5 to 4, within the limit of the maximum duration of the contract and regardless of the number of existing contracts, excluding, however, seasonal work contracts.
In any event, the Dignity Decree has not amended the section of art. 19, paragraph 2, of Legislative Decree 81/2015 under which there is the option to derogate from the maximum duration of the fixed-term contract by collective bargaining. Therefore, collective bargaining agreements can continue to have a different duration, even in excess of the new limit of the 24 months. The circular does however clarify that if the provisions of a collective agreement signed before 14 July 2018 provide for a duration of fixed-term contracts of or longer than 36 months, such contact will continue to be effective up to the expiry of the associated collective agreement.
The circular also addresses the matter of the required structure of the contracts. In detail, the reference to art. 19, paragraph 4, of Legislative Decree 81/2015 has been eliminated (requirement for the term of the contract to be specified directly or indirectly in a written document), therefore providing greater clarity in terms of the existence of the foregoing requirement.
No changes to the provision that, in certain cases, the term of the contract can continue to be indirectly linked to the specific reason for which the person was hired, for example, as maternity leave cover when the date of the employee’s return to work is not known in advance, but always within the limit of the maximum duration (24 months).
The circular also deals with the issue of identifying the additional contributions payable by an employer that uses fixed-term contracts. In fact, pursuant to art. 3, paragraph 2, of the Dignity Decree – as amended by the ratifying law – as of 14 July 2018, the additional contribution payable by an employer is 1.4% of the salary subject to social security in contracts that are not open-ended, increased by 0.5% on each renewal of a fixed-term contract, including staff-leasing contracts.
Therefore, the ordinary additional contribution of 1.4% is to be increased by 0.5% at the first renewal and then by a further 0.5% at each successive renewal. This increase does not apply to contract extensions
b) New rules for staff leasing fixed-term contracts
The circular also clarifies a number of aspects linked to staff leasing fixed-term contracts, in light of the amendments introduced in the Dignity Decree.
Under Art. 2 of the Dignity Decree, the rules applicable to fixed-term contracts have been extended to staff leasing fixed-term contracts, which were previously governed under articles 30 ff. of Legislative Decree 81/2015, exception made solely for the provisions of art. 21, paragraph 2 (breaks between two contracts, or stop and go), art. 23 (maximum number of fixed-term contracts allowed for each employer) and art. 24 (right of precedence).
The circular does however clarify that no limit is set for workers sent on fixed-term assignments by staff leasing companies. In detail, pursuant to art. 31 of Legislative Decree 81/2015, workers can be assigned to client companies on both an open-ended and fixed-term basis without the requirement to indicate a reason or specify the duration limit of the assignment, provided, of course, that the percentage limits set out in the provision above are observed.
The option remains for extension and renewal rules to be established by collective bargaining, as provided in art. 34, paragraph 2, of Legislative Decree 81/2015.
The circular also clarifies that, as a result of the reform, art. 19, paragraph 2, of Legislative Decree 81/2015 applies also to staff leasing fixed-term contracts. Consequently, once the time limit of 24 months has been reached, the employer cannot make use of a staff leasing fixed-term contract for the same worker, to carry out duties of the same level and of the same legal category.
In this case also, the circular clarifies that the calculation of the 24-month period must take into account all the staff leasing fixed-term contracts that have been entered into by the parties, including those preceding the date the reform came into force.
Furthermore, the circular highlights that if the duration of the staff leasing arrangement with a single client company exceeds 12 months or the assignment is renewed, the contract between the staff leasing company and the worker must specify a reason, which must be based on the needs of the client company and not those of the staff leasing company.
The circular also specifies that the obligation to indicate the reasons for using staff leasing fixed-term contracts arises when the same client company had previously entered into a fixed-term contract with the same worker, to carry out duties of the same level and category.
In this case also, clarifications are provided on the maximum number of workers under staff leasing contracts. Indeed, the law ratifying the Dignity Decree sets a limit on the use of workers under fixed-term staff leasing arrangements. The new version of art. 31 provides that, while the maximum percentage (20%) of fixed-term contracts set out in art. 23 continues to apply, a company can employ workers under fixed-term contracts and workers supplied under fixed-term staff leasing arrangements up to a maximum of 30% of the number of employees with open-ended contracts on its payroll.
In this case also, any existing collective agreement that provides for higher percentages shall continue to be effective up to its expiry. The aforesaid percentage limit applies to all new hires with fixed-term contracts or under staff leasing arrangements from 12 August 2018.
c) Transition period
The circular also addresses the issue of the transition period. Art. 1, paragraph 2, of the Dignity Decree had established that the new provisions would apply to fixed-term contracts entered into after the Decree came into force, and to renewals and extensions of contracts in force at the same date. The ministerial circular specifies that, in the ratification of the Decree, the aforementioned paragraph 2 was amended solely in relation to renewals and extensions, providing that, for these, the new rules would apply only after 31 October 2018. The aim is to exclude the renewal and extension of ongoing contracts from the immediate applicability of the new limits until that date.
Consequently, the provisions introduced with the reform became fully applicable on 1 November this year, including the requirement to indicate the conditions in the case of (i) renewals, always, and (ii) extensions, after 12 months.
Last but not least, the circular clarifies that the transition period applies also to staff leasing fixed-term contracts, since the Dignity Decree has in fact extended the rules applicable to fixed-term contracts also to staff leasing fixed-term contracts.
Official Gazette No. 186 dated 11 August 2018 has published the conversion law (Law No. 96) of Law Decree 87 (the so called Dignity Decree), entered into force on 14 July. Major changes have been applied to the fixed term contract. In particular, a fixed term contract can be entered into without reason for 12 months, after which it requires a specific reason. In any case, the total term of a fixed term contract cannot exceed 24 months, or it will be automatically converted into an open term contract. The maximum number of extensions is reduced to 4; if there is a fifth extension, the contract is automatically deemed an open term contract. For renewals a reason must be provided at all times. The exception to the mandatory inclusion of the reason is represented by extensions and renewals for seasonal work. The term to appeal a fixed term contract is extended from 120 to 180 days. In addition, a 0.5% increase in contributions by the employer becomes due at time of every renewal. The new rules apply to fixed term contract signed after 14 July 2018 and the extensions and renewals effective from 1 November 2018. Staff leasing is governed by the same rules of fixed term contract, except in the case of the provisions regarding the total number of fixed term contracts, right to take precedence and the so called stop-and-go. Fixed term staff leasing can be used up to a maximum of 30% of the overall staff hired with open term contracts; this limitation applies also to fixed term direct cooperation contracts. The offence of fraudulent staff leasing has been reintroduced.
In the past few days, the so called Dignity Decree (Law Decree 87/2018), which came into force on 14 July, was not approved by the Finance and Labour Committees which, during the review session, approved several amendments. With specific reference to the fixed term contract, the new regulations would be applicable to contracts entered into after the effective date of the Decree, as well as renewals and prorogations after 31 October 2018 (the so-called transition clause). Moreover, the Parliamentary Committees have approved, during the review session, the amendment according to which, except a different use of the collective agreement applied by the user, the number of employees hired with fixed term contract or staff leasing fixed term contracts cannot exceed overall 30% of the number of employees with open-ended contract working for the employer. In addition, the Committees have resolved on the introduction of the so called fraudulent staff leasing that takes place whenever the use of staff leased has the purpose of avoiding mandatory laws or collective agreements. Finally, the Committees, with reference to the conciliation model established on art. 6 of the Law Decree 23/2015, has proposed to higher the parameters from a minimum of 3 to a maximum of 27 monthly salaries. Now it is to be seen if the Decree will undergo further amendments at the time of approval.
