Tax decree: changes in the field of health and safety in the workplace

Decree Law no. 146/2021 ( “Tax Decree”) introduced several changes regarding health and safety in the workplace. The legislator intended to “tighten” the rules on illegal work, extend National Labour Inspectorate (‘INL’) powers and sanctions for non-compliant employers.

Business suspension

The Tax Decree gave the National Labour Inspectorate (“INL“) the power to suspend a company business if at the time of inspection more than 10 per cent of workers were employed “without prior employment establishment relationship notice“, i.e., illegally. The previous percentage, established by Art. 14 of Italian Legislative Decree no. 81/2008 ( “Consolidated Law on Safety at Work”), was 20 per cent.

The measure cannot be applied if there is only one employed worker. In this case, the inspectors will remove the illegal worker until they are legalised (Ministry of Labour and Social Policies, circular no. 33/2009).

INL’s business suspension powers can be applied if there are serious health and safety violations, even for the first offence. Violations are identified by a forthcoming ministerial decree. Pending the decree, the violations are specified in the new Annex I of the Consolidated Law on Safety at Work, namely:

• failure to draw up the Risk Assessment Document (“DVR”);
• failure to draw up an emergency and evacuation plan;
• failure to provide education and training;
• failure to set up the prevention and protection service and to appoint the relevant manager;
• failure to draw up the Operational Safety Plan (“POS”);
• failure to supervise the removal or modification of safety, signalling or control devices;
• failure to provide personal protective equipment against falls from a height and lack of protection against falls;
• failure to apply retaining reinforcements, except for the prescriptions that can be deduced from the technical report on ground stability.

Among the violations, listed in Annex I, that lead to suspension include the following:

• work near power lines in the absence of appropriate organisational and procedural provisions to protect workers from the related risks;
• presence of live bare conductors without organisational and procedural provisions to protect workers from the related risks;
• lack of protection against direct and indirect contacts (earthing system, magnetothermic switch, differential switch);
• failure to supervise the removal or modification of safety, signalling or control devices.

The suspension for safety reasons is for those parts of the company’s activity affected by the violations or the activity carried out by workers who (i) have not received appropriate education and training or (ii) have not been provided with personal protective equipment to prevent falling.

Together with the suspension measure, INL may require “specific measures to eliminate the danger to the safety or health of workers during work.”

Suspension revocation

The suspension measure revocation – governed by art. 14, paragraphs 9 and 10 of the Consolidated Law on Safety at Work – can be ordered by the supervisory bodies if the following conditions are met:

• legalisation of workers not resulting from the records or other compulsory documentation, which must comply with health and safety requirements;
• Verify the restoration of regular working conditions in cases of health and safety in the workplace regulation violations;
• removal of the dangerous consequences of serious safety violations.

Before the reinstatement of regular working conditions, it is necessary to pay (i) €2,500 for up to five illegal workers or €5,000 if more than five illegal workers are employed for suspensions for irregular work and (ii) a variable sum (€3,000, €2,500 or €300 for each worker) for suspensions for health and safety violations, depending on the violations.

If the same employer has been subject to a suspension measure in the previous five years, the amount is doubled.

Participation in public tenders

The Tax Decree states that the employer is prohibited from contracting with the public administration during business suspension due to non-compliance with occupational safety rules. So a company that employs illegal workers or commits violations of occupational safety may be blocked from participating in tenders.

In addition, an ad hoc report is made to the National Anti-Corruption Authority (“ANAC”) and the Ministry of Infrastructure. A suspended party who does not comply with the measure is punished with (a) up to six months jail for suspensions due to violations on health and safety in the workplace and (b) three to six months jail or a fine from €2,500 to €6,400 for suspensions due to illegal work.