Who has the power to dismiss the employee in the case of an outsourcing contract? The issue, which at first glance may appear technical, has widespread application in Italy, where the use of outsourcing (or sub-contracting) is frequent. In particular, companies have to keep on top of both developments in the regulations as well as case law, to ensure that that they act lawfully, considering social policies have changed significantly over the years. “For an outsourcing contract to be considered genuine it will need to comply with the requirements on personnel organisation and management, the coordination of resources and the assumption of business risk by the contractor”, explains Vittorio De Luca, partner of the law firm De Luca & Partners. “Although the relevant legislation has remained substantially unchanged for 20 years, the case-law, due to the particular sensitivity of the matter, has developed in a way that has, generally, lead to more negative consequences for the principal”. Finally, there is also new case-law regarding the sham outsourcing contract, which emerges when the principal imposes external management, governing the ‘outsourced’ workforce of the contractor by interfering directly in how the activities are carried out. In this case, the courts may consider the dismissal of the employee to be ineffective if it is not carried out by the principal in its capacity as de facto employer.
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With Circular No. 1/E of 12 February 2020, the Italian Revenue Agency provided further clarifications regarding the new provisions introduced by article 17-bis of the 2019 Tax Decree (Law No. 157 of 19 December 2019) on procurement contracts.
Let us go into the details of the most important clarifications.
Subjective sphere
The Italian Revenue Agency, first of all, focuses on the definition of “client”. Specifically, it considers that this definition refers both to the original client and to the subcontractor, since, in relationships where there are customers, contractors and subcontractors (so-called “chain” relationships) each of them could individually play the role of client and thus fall within the sphere of application of the rules.
Objective sphere
The Italian Revenue Agency shall then provide clarifications as to the conditions under which a company must comply with the new obligations and the grounds for exemption.
In particular, the new obligations apply in the case of entrusting a company with the execution of one or more projects or services for a total annual amount of more than €200,000, within the framework of a tender contract, subcontract, entrusting to consortium members or trading relationships in any case known as prevalent use of labour.
On this point, the Italian Revenue Agency clarifies that it is not the legal namethat the parties attribute to the relationship but the actual prevalence of labour at the client’s premises that is important.
The reference to a “company” leads to the exclusion of art or profession practitioners from the mandated entities. Conversely, work contracts entered into with companies are included, provided that they use workers with the right to receive income from employment or similar for the execution of the work/service commissioned.
The determination of the €200,000 threshold refers to the individual contracts outstanding in the (calendar) year of reference (1 January to 31 December), any changes that have occurred and all contracts entered into during the year by each company.
If the contract is on an annual or multi-annual basis with a predetermined price, the calculation must be set according to a pro-rata-temporis mechanism.
If, on the other hand, contracts are signed without a predetermined price or expiry date, a cash basis will be followed and the obligations will commence with regard to income from employment and the like when the specified amount is exceeded and until the contract expires.
Furthermore, the services must be carried out at “the client’s places of business“, which include the registered and operational offices, representative offices and any other place attributable to the client and which is intended to carry out the activity through the use of “fixed assets owned by the client or attributable to it in any form“. If the use of fixed assets is occasional or in any case not indispensable for the performance of the assignment, this condition shall not be deemed to exist.
Supply contracts pursuant to Article 30 of Legislative Decree No. 81/2015 do not fall within the scope of application of this rule, since the supply agency “makes one or more employees available to a user who, throughout the duration of the mission, carry out their activities in the interest and under the direction and control of the user”. However, the illegal supply of labour is included in the scope of application.
As mentioned above, the client is relieved from fulfilling the new obligations if:
In order to prove the presence of the above mentioned requirements, it is necessary to attach a certification made available to the company or its representative, starting from the third working day of each month, by the territorially competent Provincial Directorate of the Italian Revenue Agency. The certificate shall be valid for a period of four months from the date of issue, after which the aforementioned companies must acquire a new certificate. If the client is a Public Administrator, the existence of the requirements must be self-certified.
Obligations
The Italian Revenue Agency clarifies that contractors, mandated entities or subcontractors are obliged to pay withholding taxes of the workers, with separate payment proxies for each client, without any possibility of offsetting.
However, it adds that by harmonising the prohibition with the other provisions of the Italian legal system, the withholding agents covered by that prohibition accrue credits which may be used as offsets solely by means of the F24 model for the purposes of payment of withholding tax charged to recipients.
On this point, the Italian Revenue Agency, by way of example, cites the credits that the withholding agents accrue for having advanced sums of money to employees on behalf of the State, such as refunds paid as a result of tax assistance, year-end adjustment or termination of employment, or credits arising from excess withholding tax payments.
According to the Italian Revenue Agency, the companies in question cannot, on the other hand, make use of the institution of compensation for the payment of social security and welfare contributions and compulsory insurance premiums accrued in relation to employees directly employed in the performance of works and services.
It is possible to prepare separate F24 models for each client or a cumulative F24 model for all contributions and premiums owed by the company. In the latter case, it will be the taxpayers’ responsibility to reconstruct the calculation methods used during the audit.
Mandated entities are obliged to issue to the client:
The client, on the other hand, is obliged to suspend the payment of the fees accrued by the contractor if within five working days: (i) either the right to receive payments from the contractor or mandated entity has accrued but the latter has not forwarded to the client the payment proxies and the information relating to the employees referred to in paragraph two or (ii) the withholding tax has been omitted or insufficiently paid with respect to the data emerging from the documentation forwarded.
If the new obligations should fall on the contractor, the latter alone shall be entitled to suspend payments to subcontractors until they have fulfilled their obligations.
Penalties
In the event of a breach of the obligations examined, a non-fiscal administrative penalty has been imposed on the client. Should the latter fail to make correct payments of withholding tax or do so late without the possibility of offsetting, they shall pay a sum equal to the penalty imposed on the contractor, mandated entity or subcontractor.
However, the penalty shall not be due if the contractor, mandated entity or subcontractor proves that it has correctly fulfilled its obligations or has resorted to effective remedial action, thereby remedying the breaches committed before the supervisory bodies proceed with a complaint.
In any case, and in any event until 30 April 2020, the contractor will not be charged with any infringement provided that the necessary documentation required by law is provided.
The Court of Padua, under ruling no. 550 of July 16, 2019, addressed the issue of employment based on the concept of hetero-direction of work in the light of technological evolution, outlining the criteria for identifying the actual employer.
Facts of the case
The case in question originates from the appeal filed by four employees of a Cooperative Company, who were contractors for the management of warehouse logistics services and who claimed that they had ascertained that they were executing their employment contract directly with the customer. The complainants’ duties were those of “pickers“, i.e. pickers and handlers of goods, in relation to which they were placed at the first level of the Multiservice National Collective Bargaining Agreement.
The employees’ request was based on the assumption that (i) all the means necessary for the execution of the contract were the property of the customer and (ii) the working instructions were issued directly by the customer, either through a mobile terminal available to the workers or, by voice, through a connection using a headset and a microphone. This control system allowed the customer company to know, in real time, the operations carried out by the individual and the duration of each operation.
The four workers also claimed that the work was controlled by the logistics manager of the customer and by one of its employees, who reprimanded workers who did not complete the minimum number of hourly operations required.
The workers in question claimed the application of the National Collective Bargaining Agreement of the services sector, applied by the customer, with classification at the 5th level, or the application of the Multiservices National Collective Bargaining Agreement of the contractor with classification at the 3rd level.
Said workers therefore demanded, that, primarily, the execution of an employment contract be ascertained directly with the customer, with the sentencing of the latter to pay the due wage differences and that, secondly, the defendant companies be sentenced to pay the wage differences in relation to the classification in the 3 level of the Multiservices National Collective Bargaining Agreement.
The decision of the Court of Padua
In the opinion of the Court of First Instance, the fact that the customer was in a position to process the data of the workers of third-party companies by means of tools potentially suitable for the remote control of workers is an argument for considering that it exercised the powers of the employer.
The customer, in fact, exercised a specific and timely control over the managers of the cooperative. This control was not limited to the preparation of general directives on the execution of the contract, but provided for the holding of two meetings a day in the presence of the workers and the warehouse manager. In addition, the Judge pointed out that it was suspected that there was a coincidence in time between the reminders that the owners of the cooperative addressed to the employees and the discussions they held with the person in charge of the customer.
The work organisation of the “pickers” was also fully automated and the software through which this automation was realised was exclusively available to the customer. The software recorded the individual operations of the workers, associating a code to the name that it recognised vocally.
Ultimately, the Court believed that the overall management of the company’s activities and the work management of the individual employees could be understood as a computerised relationship with the customer, leaving the cooperative with a residual function of control and disciplinary intervention, that was more or less solicited.
In light of the foregoing, the Court of Padua accepted the workers’ request, considering them employees of the customer, sentencing the latter (i) to classify them at the 5th level of the Services Sector National Collective Bargaining Agreement, (ii) to pay each of them the relative salary differences and (iii) to pay the social security and welfare contributions due on the basis of this contract.
