Posting and compulsory communications – ministerial decree published
Italian Legislative Decree no. 136/2016 (the “Decree“), implementing the European Directive 2014/67/EU, regulates transnational posting of workers as part of service provision.
Article 10 of the Decree places several administrative obligations on the foreign company (“the Posting Company“) that intends to post one or more workers to a company based in Italy (“the Host Company“).
The legislation provides for three different types of posting:
- by a company based in a foreign country to a branch in Italy;
- by the above company to an Italian company in the group to which it belongs (intra-group posting);
- as part of a commercial contract (e.g. service contract) entered into with a principal (company or other recipient) having its registered or executive office in Italy.
Whenever one of the above cases occurs, the Posting Company is required to:
- collect and keep the documentation relating to employment;
- appoint a contact person electively domiciled in Italy, responsible for exhibiting, sending and receiving documents (e.g. requests for information and documentation, notification of access reports and assessment of violations) in the name and on behalf of the posting company, including the formal notification of deeds to the company by supervisory personnel (Art. 10, paragraph 3, letter a).
- appoint a person, who may be the same as above, to act as legal and trade union representative, to put the social partners in contact with the service provider for possible collective bargaining (art. 10 paragraph 4).
- make the prior notification of the posting of personnel employed in Italy to the Ministry of Labour and Social Policy (UNI_Distacco_UE Form) by midnight the day before the posting’s start.
Art. 1, paragraph 1, letter d), of Legislative Decree. 122/2020, transposing EU Directive 2018/957, introduced into the Decree art. 4-bis, having as its object “long-term posting.” It states that “if the posting duration exceeds 12 months, working and employment conditions provided for in Italy by regulatory provisions and national and local collective agreements entered into by workers’ and employers’ organisations that are comparatively more representative at national level shall apply to the posted workers if more favourable […], except for those concerning:
- a) the procedures and conditions for signing and terminating employment contracts;
- b) non-competition clauses;
- c) supplementary occupational pension schemes.
If one or more posted workers performing the same tasks in the same place are replaced, the duration of the posting, to calculate the period referred to in paragraph 1, shall be determined by total work periods performed by the individual workers. Identifying duties performed in the same place is assessed based on the nature of the service provided, work performed and job location.”
Compulsory communication – UNI_Distacco_UE Form
The UNI-Distacco_UE form is made up of several sections in which the following data must be reported:
- Posting and host companies and the data of both legal representatives;
- contact person (Art. 10, paragraph 3, letter b), i.e. the person in charge of producing, sending and receiving documents on behalf of the posting company;
- contact person (Art. 10, paragraph 4), i.e. the person who acts as the trade union representative;
- posting place and duration;
- personal data of the worker posted to Italy.
The Ministry of Labour and Social Policies, implementing the changes introduced by Legislative Decree no. 122/2020, on 6 August 2021, published its Decree no. 170. This sets new standards and rules for the electronic transmission of communications from service providers to the Ministry for workers under long-term posting in Italy.
In addition to confirming the need to enter the data listed above, the decree introduces two new sections in the UNI_Distacco_UE mandatory communication.
- the section on the communication of the reasoned notification for long-term postings: within this section, the posting company must justify the “long-term posting” to guarantee the posted worker the greater protections provided by art. 4 bis of Legislative Decree 136/2016 and reported in the previous paragraph;
- the section in which the posting company communicates the replacement of one or more posted workers to perform the same tasks in the same place. In this section the posting company shall provide information about the replaced worker and consider the period during which the worker was posted.
The renewed UNI_Distacco_UE form will be operational on the institutional website of the Ministry of Labour and Social Policies once the Ministerial Decree in question is registered by the Court of Auditors and subsequently published.