Home
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:
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:
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:
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
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.
Massimo Riva
Associate Partner
Send inquiry
Stefano Belloni
Rödl & Partner in Italy