Italian Decree-Law no. 19/2024 (converted by Italian Law no. 56/2024) increased penalties for unlawfully carrying out staff supply work, contracting and secondment by expanding the cases for which there are criminal penalties.
In summary, contracting, secondment, and staff supply work are considered unlawful when workers are used without meeting legal requirements, for evasive purposes, and without the contractor, seconding party, or staff supplier exercising managerial and organisational powers.
On this point, the Italian National Labour Inspectorate (Ispettorato Nazionale del Lavoro, ‘INL’) first intervened in note no. 1091/2024 to clarify the exact amount of the applicable fines and the complex recidivism mechanism. Subsequently, in note no. 1133/2024, the INL examined the transitional regime for the application of the new penalties.
On the latter point, the INL has clarified that the new criminal penalties apply in relation to conduct that took place on or after 2 March 2024, the effective date of Italian Decree-Law no. 19/2024. For conduct that started and finished before 2 March 2024, on the other hand, the previous penalty regime of an administrative nature, regulated by Circular no. 6/2016 by the Ministry of Labour, applies.
However, the real issue, which has now been clarified, relates to conduct straddling the enactment of Italian Decree-Law no. 19/2024. The INL has confirmed that conduct started before 2 March 2024 and continued after that date is exclusively criminal in nature and therefore is subject to the penalties established by the new penalty regime.
In addition, the INL has also clarified that in determining the applicable penalty, which is linked to the number of days of unlawful employment of personnel, due to the possible alternatives of imprisonment and fines, periods prior to 2 March 2024 should also be considered. This is because the days of employment are relevant in assessing the seriousness of the offence, which, in turn, determines a proportional and “mandatory” sanction which is predetermined by reason of the workers involved and the number of days and constitutes a mere instrument to quantify fines with reference to conduct that must necessarily be considered as a single offence.
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In note no. 1091/2024 of 18 June 2024, the INL provided the first operational guidelines on the changes introduced by Italian Decree-Law no. 19/2024 regarding the sanctions regime for unauthorised staff supply work, contracting and secondment.
Article 29, paragraph 4 of Italian Decree-Law no. 19/2024 has, in fact, reinstated the criminal offences of unlawful staff supply work, contracting and secondment. It has introduced the alternative or joint penalty of arrest or fine where “staff supply work is carried out with the specific purpose of evading mandatory legislative provisions or of the collective agreement applied to the worker”.
The INL notes that “in relation to the correct determination of the amount of fines to be applied when alleging breaches, it is necessary to take into consideration the provisions of Article 1, paragraph 445, letter d), point 1, of [Italian] Law no. 145/2018. […] This provision was only partially amended by [Italian] Decree-Law no. 19/2024 – with the increase from 20% to 30% of the amounts of the so-called maxi-sanction for ‘off the books’ work – thereby confirming the effectiveness of the 20% increase already provided for in relation to the cases referred to in Article 18 of [Italian] Legislative Decree no. 276/2003”.
This increase must also be applied to the new fines provided for by Italian Decree-Law no. 19/2024.
By way of example, in relating to carrying on unlawfulstaff supply work “punished by imprisonment for up to one month or a fine of EUR 60 for each worker employed and for each day of work” of five workers for 20 working days each, the fine is calculated as follows:
In these operational guidelines the INL also deals with repeat offences, for which a series of increased sanctions are provided for, as well as in the case of aggravating circumstances in the case of exploitation of minors.
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With note no. 1363 of 14 September 2021, the National Labour Inspectorate (“INL”) provided some clarifications concerning the amendments made by Decree Law no. 73/2021 ( “Decreto Sostegni bis“) to the regulation of the reasons for fixed-term contracts.
The “Decreto Sostegni bis“, as converted by Law no. 106/2021, supplemented the rules set out in Art. 19 of Legislative Decree no. 81/2015, introducing the first part (letter a), the possibility for collective bargaining (at the national, local and corporate level) to identify specific needs for the stipulation of a fixed-term contract lasting more than 12 months. These requirements are in addition to the other justifying reasons set out in the same Article.
As for the “specific needs” substantial features, INL clarified in the circular in question that the rule does not set any content constraints since they are only required to be specific and actual and avoid generic formulations.
INL pointed out that the delegation to collective bargaining to identify the reasons affects the stipulation of the first contract for a period longer than 12 months and the rules governing renewal and extension, under art. 21 of Italian Legislative Decree no. 81/2015.
The addition of one of the reasons identified by Art. 19 is always required (under penalty of conversion of the fixed-term contract into an open-ended contract) for renewals and extensions only when the contract duration exceeds 12 months.
It will be possible to renew or extend a fixed-term contract under the new collective bargaining provisions (specific needs)
By letter b) of the same paragraph 1 of Art. 41 bis, paragraph 1.1 was added to Art. 19, according to which “the time limit exceeding 12 months, but not exceeding 24 months, referred to in paragraph 1 of this Article, may be applied to employment contracts which meet the specific needs provided for by the collective labour agreements referred to in Article 51, under letter b-bis) of the same paragraph 1, until 30 September 2022“.
Many interpretative doubts had arisen concerning the application scope of the 30 September 2022 time limit under the new provision.
The INL note dispelled any uncertainty, clarifying that the time limit (30 September 2022) for the use of the new reason (needs identified by collective bargaining):
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In the light of INL’s clarifications, we can conclude that:
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According to ordinary fixed-term contract rules (Art. 19 et seq. of Legislative Decree no. 81/2015), the extension exceeding 12 months and a renewal must be justified by one of the following reasons:
under penalty of changing the contract into a permanent relationship.
The dangers of serious economic and employment relations damage led the legislator to introduce specific exceptions for fixed-term contracts, as part of the regulatory framework to deal with the Covid-19 epidemic.
Art. 1, paragraph 279, of Law 30 December 2020, no. 178 ( Budget Law) extended until 31 March 2021 extending or renewing fixed-term contracts without the obligation to provide reasons.
This extension ensures greater flexibility, and was first introduced by the “Relaunch Decree” until 31 August 2020, then extended until 31 December 2020 by the “August Decree” and now extended by the Budget Law until next spring.
Under the above emergency legal framework extending or renewing without providing a reason is only allowed once. This means that, even if the regime’s expiry date is changed from 31 December 2020 to 31 March 2021, those who have already benefited from an extension or a renewal under the August Decree cannot use it again under the Budget Law.
A further condition provided for by the law concerns the maximum extension or renewal duration without providing a reason, of 12 months, without prejudice to the maximum total duration, when added to other periods of 24 months.
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The exception rules contained in the August Decree, and amended by the Budget Law up to the regime’s final term, have generated many interpretation doubts. Deviation from the rules governing the “stop and go” (i.e. the time that, according to the ordinary rules, must elapse between a contract stipulation and its subsequent renewal) and the maximum number of extensions.
Due to the legislator’s objectives and the wording used, The National Inspectorate of Labour, with its note no. 713 of 16 September 2020, specified that
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In order to facilitate the activity of the Prefects at a decisive moment such as that of the so-called Phase 2, the National Labour Inspectorate (“INL”), on 20 April 2020, published note no. 149 (“Note INL no. 149”), with which it provides a real operating guide for its territorial offices, to contribute, at the request of the Prefectures, to the necessary checks on the occurrence of the conditions provided for the prosecution – in case where it is permitted – of production, industrial and commercial activities, with a view to indispensable synergy in the management of the current pandemic emergency.
These requests are in response to the circular of the Ministry of the Interior dated 14 April 2020, prot. no. 15350/117 (Annex A to the INL Note no. 149) which provides clarifications regarding the D.P.C.M. 10 April 2020 and which, among other things, highlights the need for the Prefectures to request the collaboration of the competent services of the Local Health Authorities (“ASL”) and the support of the INL’s territorial articulation, for the purposes of control:
Source: full italian version published on Guida al lavoro – Il Sole 24 ore.
