The reform of transnational posting became officially effective as of 30 September 2020, following publication of the Italian Legislative Decree 122/2020 in the Official Gazette, implementing EU directive 2018/957, adding a series of amendments to the current legislation on the subject contained in Italian Legislative Decree 136/2016.

First of all the scope of rules on transnational posting was explained and extended. Specifically, these rules are now also valid for temporary employment undertakings established in a Member State different from Italy that post one or more workers to a user undertaking then sent to work, by the latter undertaking, at one of its production units or another company, including belonging to the same group, with registered office in Italy.  The involved workers are considered posted to Italy by the temporary employment undertaking with which they have an employment relationship.

Moreover, the notion of “working and employment conditions” was expanded, to use as a benchmark for recognition of so-called equality of treatment in favour of posted workers, including all of the terms and conditions contained in laws and regulations and collective contracts. The list of subjects covered by equal treatment has also been revised. According to the new legislation, the same working and employment conditions apply to posted workers, if more favourable, as those applied to Italian workers who perform permanent jobs similar to theirs. This refers in particular to legal provisions and those of collective contracts concerning rest periods, working hours, remuneration, the conditions of hiring-out of workers, health, safety and hygiene at work, working and employment conditions of pregnant women or women who have recently given birth, of children and of young people; equality of treatment, the conditions of workers’ accommodation, travel, board and lodging expenses.

Lastly, another important provision regards postings of long duration. Particularly, the decree states that if the actual period exceeds twelve months (period that can be extended to 18 months) all of the other working and employment conditions shall apply to posted workers, if more favourable, required in Italy by laws and regulations and national and territorial collective contracts signed by worker organisations and employers that are comparatively more representative at national level. The above does not apply to provisions concerning the procedures and conditions for the conclusion and termination of the employment contract, non-competition clauses and supplementary pension schemes.

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 EU Directive No. 2018/957 amending the directive 96/71/EC regarding the posting of employees during the provision of services has been published on the EU Official Journal dated 9 July 2018. Specifically, the directive orders that the maximum term for transnational posting be 12 months, with the possibility of extending it for additional 6 months. At the end of the 12 months, based on the equal treatment principle, the posted employee shall be guaranteed with all the labour and employment conditions of the Country where he/she works. During the posting, the employees will be subjected to the regulations of the hosting country in terms of remuneration and they shall have the right to enjoy the lodging and indemnity conditions or reimbursement for travel expenses, meal and lodging, since he/she is away from home for business reasons. The member states shall apply also the regional or sector’s collective agreements, if widely encompassing and representative. The period in which the posted employee will hold his/her contributory regime  applicable in the origin country is reduced from 12 to 24 months and the regulations on the maximum work periods and minimum rest periods shall apply, including those governing the term of paid annual leaves. The regulation expands the application of the rules also to the staffing agencies that decide to post a worker at a user’s company headquarters or centre of activity in the territory of a member state. The Member States now have two years of time to adjust to said regulation their own domestic laws and regulations meaning by 30 July 2020.

With note No. 4833 dated 5 June 2017, the Italian Labour Inspectorate provided clarifications regarding the correct application of the Legislative Decree No. 136/2016 on the topic of transnational posting. With reference to the concept of “provision of services” the provision clarifies that such wide meaning term – which assumes the execution of temporary work activities in favour of a beneficiary located in Italy (that is the “receiving entity”) or a production unit of the foreign posting company present in Italy or at a client party – include tenders, sub-tenders and, more in general, any trade agreement having as its scope the exchange of services between companies located in different countries. Regarding the concept of the production unit of the foreign company posting in Italy, the Inspectorate specified that it must be a unit having a minimum level of organization of means and/or people and that, therefore, be an actual centre for handling relationships and legal situations related to the foreign entity. According to the Inspectorate, within the legitimate transnational posting cases fall those in which foreign workers are sent to Italy to work at a branch of the posting foreign entity or at another commercial entity (e.g. the “receiving entity”) located in Italy and that, subsequently, are engaged in Italy to carry out a tender at another client company. Lastly, the Inspectorate, on the one hand, excluded from the term “provision of transnational services” the activities carried out at temporary stalls on occasion of expos, fairs and events since a stall cannot be deemed a production unit, while on the other hand it included in the definition the activities to assemble and disassemble the stalls.