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.
The National Labour Inspectorate, with Circular Letter no. 1881 of 25 February 2019, has clarified aspects concerning the application of Article 4, Workers’ Statute, in the event of occurrence – following changes in the company ownership structure (mergers, transfers, incorporations, leases of company or business lines) – of a change of ownership of a company that has installed video surveillance systems or other systems allowing remote monitoring of work activities.
More specifically, the Inspectorate was asked if in these cases it is necessary to repeat the procedure with the trade unions or the authorization procedures or if instead it is enough that the occurred change of ownership be formally notified to the competent office of the Inspectorate.
Reference Regulations
Article 4 of the Workers’ Statute, which was amended in 2015, sets forth (par 1) that the audio-visual systems and other tools allowing remote control of workers’ activities, can be used exclusively for:
Moreover, even if the above conditions are met, it is necessary that:
The indications of the Inspectorate
The Inspectorate clarified that in the event of a mere “take-over” of a company’s facilities previously equipped with the aforementioned tools/systems, it not necessary to “replicate” the procedures (trade union agreement / administrative authorization) set forth in Article 4 of the Workers’ Statute. This is so provided that changes have not occurred with regard to (i) the requirements of legitimization (production and organizational needs, safety at work and protection of company assets) and (ii) the operational arrangements of the systems (framing, angles of coverage, etc.).
However, according to the Inspectorate, it is necessary that the company taking over the facilities:
In any case, the Inspectorate has clarified that any type of use of the devices other than the authorized uses is forbidden, under penalty of the obligation to repeat the described authorization procedures, just like in the event of a change of the requirements of legitimization.
Other News:
Remote control of workers: additional operating provisions from the Labour Inspectorate
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.
The National Labour Inspectorate (INL), with its Note No. 6316 dated 18 July 2018 provided its opinion regarding the legal nature of the offence related to failure to hire disabled individuals or individuals belonging to the protected categories as per art. 15, paragraph 4, of the law No. 68/1999. According to INL the aforementioned offence shall be deemed immediate and with permanent effects. Immediate due to the fact that the omission occurs when the term established by law expires and the party bearing the legal responsibility to perform the hiring by the 60th day from the date in which the obligation occurs fails to do so. Permanent due to the extended effect of the offence over time until the breach is corrected. Qualifying an offence as immediate triggers a number of repercussions in terms of applicable regulation, in the case of sequence of laws over time. Regarding the offences occurred when the old regulation was in force – whose effects continue to apply even after the new penalty provision established by article 5, paragraph 1, letter b) of Law Decree No. 185/2016entered into force on 8 October 2016 – the applicable penalty will be the one in force at the time in which the offence occurred, according to the “tempus regit actum” principle. Even with reference to the terms of the statute of limitations it will be necessary to refer to the time when the offence actually occurred.
Art. 1, paragraph 910 of Law No. 205/2017 (the so-called Budget Law 2018) established that, effective from July 1, 2018, employers and private clients must pay to employees their remuneration, as well as any advance, through a bank or post office using one of the following methods of payment: a) wire transfer on the current account identified through the IBAN code specified by the employee; b) electronic payment methods; c) cash payment through the bank or post office where the employer has opened a cash account with payment order; d) check handed out directly to the employee or, in the case of a proven impediment, to a proxy. On this matter, the National Labour Inspectorate (Inl), with memorandum No. 6201 dated 16 July 2018, specified that the aforementioned payment methods concern exclusively the remuneration. Thus, also in the opinion of Inl, their use is not mandatory for money paid for other reasons, such as cash advances for expenses that the employee must bear for the company and in the provision of services (e.g. lodging, meal and travel expense reimbursement).
