Transnational posting: Italy adopts the new European legislation (Andrea Di Nino, Sintesi– Ordine dei Consulenti del Lavoro, November 2020)
Italian Legislative Decree no. 122/2020, published in the Official Gazette no. 229 of 15 September 2020, adopted the EU Directive 2018/957 concerning transnational posting: the new provisions are contained in Legislative Decree no. 136/2016, the current reference for this institution in the Italian legal system, where a series of amendments were made.
The intention of the European government – right from the first measures made on the matter – are aimed at the various cases of transnational posting in order to prevent and eradicate distortive phenomena of the EU job market, such as dumping and unlawful temporary employment.
Examining the new provisions established by the Legislative Decree no. 122/2020 there appears to be a general tightening of the regulations, made stricter in terms of numerous areas of interest. First of all, it is possible to see how the legislation’s field of application has been expanded: in particular, the regulations regarding transnational posting are also applied to posting cases that are more complex, such as those by temporary employment undertakings or placement agencies, which in the past were excluded from the regulations.
More specifically, this is the case of temporary employment undertakings or placement agencies located in another Member State different from Italy that, for transnational provision of services, post workers to their own production unit or to another company, including belonging to the same group, with registered office in Italy to then hire them out to Italian user companies. In this case, the new legislation has established that workers in these situations are to be considered as posted in Italy directly by the temporary employment undertaking or placement agency with which they have an employment relationship.
Moreover there is a precise information obligation for the Italian user company to inform the posting temporary employment undertaking about the working and job conditions that need to be applied to the posted workers.
The legislative decree under review also clarified how – in terms of guaranteeing a complete protection of the rights and working conditions – the posted workers must be recipients of the same rules and guarantees applied to workers of the destination country. For this purpose, the text of the decree contains a clear list of matters where the Member State laws where the job is performed must be applied, if they are more favourable.
For example, the law states institutions such as maximum work periods and minimum rest periods, the minimum paid annual leave, remuneration, including increases for overtime, health, safety and hygiene at work, etc. Specifically referred to remuneration institutions, the items that compose individual remuneration must be perfectly separated and identifiable in order to discourage payment of simulated reimbursements, with the sole purpose of getting around social security contribution payment obligations on the actual remuneration received by the worker.
The Government’s intervention also involved the maximum posting duration: specifically, the maximum duration of 24 months is reduced to 12, with the possibility of a 6 month extension subject to motivated notice to the Ministry of Labour and Social Policies. The legislation now states that once this period has elapsed and the concerned worker has not returned from the posting, all of the work and employment conditions provided for in Italy under the law and regulatory provisions and under the national and territorial collective bargaining agreements, save for those concerning the procedures and the conditions for ending and terminating the employment agreement, non-compete clauses and sector supplementary pension schemes, shall be automatically applied. This overall maximum duration also refers to the case where one or more posted workers are replaced to perform the same duties in the same place. The identity of the duties performed by the workers is assessed case by case, also taking into account the nature of the service provided, work to perform and place where the job is performed.