The transnational posting of workers in Italy: published in the Official Gazette the Decree transposing the EU Directive 2018/957

published on 29 September 2020 | reading time approx. 3,5 minutes

The Legislative Decree 15 September 2020, no. 122 has implemented the EU Directive 2018/957, amending the Directive 96/71/ EC on the transnational posting of workers.

  
  
This intervention does not have a relevant impact on the current regulations, established through the Legislative Decree no. 136/2016, but has strengthened its provisions, enhancing a higher protection for posted workers.
 
In particular, such intervention was aimed to fight both the illegal actions (such as fraudulent transnational posting or social and wage dumping) an also those events, lawful or physiological, which may make the competition between European companies unfair, since they allow some foreign companies to take advantage of ‘local’ companies which operate in geographical areas with higher labour costs.
 
Firstly, it is worth mentioning that the field of application of the rules on workers’ posting has been widened.
In details, the regulation refers to:

1. companies of another Member State that post their employees to Italy, provided that during the posting period an employment relationship continues to exist between the posted worker and the posting company;
2. companies established in a non-EU country that post their employees to Italy;
3.  temporary employment agencies, established in a Member State other than Italy, that post their employees to the Italian premises of the user company.

Specifically referring to the latter case, the new provision has expressly brought back to the discipline of transnational posting also some hypotheses of transnational lease of manpower until now excluded from the field of application of the relevant regulation, namely the cases in which a temporary employment agency:

1. seconds one or several workers in the territory of the same Member State to a user company which subsequently sends these workers to Italy, as part of a transnational provision of services (other than staff-leasing), to an its own business unit or at the business unit of another company belonging to its own group; or
2. seconds one or several workers to a user company – with headquarters or business unit in Italy – which sends out these workers to another Member State as part of a transnational provision of services (other than staff-leasing).

In the abovementioned cases, the workers are deemed as posted directly by the temporary employment agencies and, consequently, the laws of the place where the working performance is effectively carried out applies. The same occurs also in the hypothesis in which it is the Italian temporary employment agency to operate a secondment abroad.
 
In relation to these cases of ‘triangulation’, the Decree in question has also assigned to the user company based in Italy an additional information obligation, which consists in informing the temporary employment agency about the work and employment conditions that must apply to the posted workers.
 
On this latter point, it is worth mentioning that Legislative Decree no. 136/2016 already established that, for the whole posting period, the working and employment conditions of the host Member State – applicable to the ‘local employees’ performing similar tasks and duties – also apply to the employment relationship between the posted workers and the posting company.
 
In compliance with the Directive, the Decree has better outlined the list of working and employment conditions for which is applied the law of the place where the work performance is actually carried out.
 
Specifically, it has been established that posted workers are subject, if more favorable, to the same working and employment conditions provided for by Italian law as well as to those contained in collective agreements, at national or territorial level, entered into by unions associations comparatively more representative at the national level (with the express exclusion of collective agreement at company level), and this with reference to:

1. maximum work periods and minimum rest periods;
2. minimum paid annual holidays and leaves;
3. the minimum salary, including overtime increases (this point does not apply to supplementary occupational retirement sectoral pension schemes);
4. the conditions for lease of manpower (in particular the lease of workers by temporary employment agencies);
5. health, safety and hygiene at work;
6. protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people;
7. equality of treatment between men and women and other provisions on non-discrimination;
8. ‘adequate’ accommodation conditions, where it is provided by the employer in cases where the posting occur in a place away from the usual employee’s workplace; and
9. allowances or reimbursements for travel, accommodation and board expenses, in cases where the worker is sent off-site due to service needs.

Furthermore, for the purpose of this regulation, the concept of ‘salary’ is redetermined and now it is inclusive of all ‘allowances paid to the worker relating to the posting’. The above does not include reimbursement of expenses for travel, accommodation and board strictly related to the posting and refunded by the employer in accordance with the applicable regulation of the Member State of the employer.
 
Such specification is particularly important since the salary must in any case comply with the minimum amount set out in the State where the work is effectively carried out and has also to be aligned with the one granted to the other posting company’s employees.
 
Lastly, the new Decree has also introduced a reduction in the maximum posting period, which is reduced from 24 down to 12 months (that may be extended up to 18 months with a motivated notice to the Ministry of Labour).
 
Once this maximum period is expired, all the working and employment conditions set forth by the Italian law and by the collective agreements (both national and territorial, if signed by the most representative unions) apply to the posted workers, the above with specific exception for the provisions on

1. procedures and conditions for the termination of the employment relationship;
2. the non-compete covenant;
3. the sectorial supplementary pension schemes.

With the aim to avoid an elusive use of the posting instrument, the aforesaid maximum posting period includes the one carried out by another worker who has replaced a previously posted worker in the performance of the same tasks (the so-called ‘chain posting’).
 
Conclusively, it must be highlighted that these new regulations will come into force on 30 September 2020.