National Labour Inspectorate specifies scope of penalties for irregular posting of employees

The posting of employees from an EU country to Italy must comply with Legislative Decree 136/2016 (which transposes into national law EU Directive 2014/67/EU on the posting of employees in the framework of the provision of services) to avoid being challenged by the National Labour Inspectorate under the related penalty regime.

Legislative Decree 136/2016 applies to companies established in EU member states which, in the context of the provision of services, post to Italy one or more employees in favour of another company, including those belonging to the same group, another production unit or another recipient, on condition that during the posting, an employment relationship continues to exist with the posted employee.

The legislative decree provides a list of specific requirements and conditions (relating to both the form and substance of the posting and the activity to be performed), subject to verification by labour inspectors, on the basis of which the transnational posting of employees can be considered lawful under Italian law.

The legislative decree also requires that:

• during the posting, the employment relationship between posting entities and posted employees must apply the same working and employment conditions applied to employees performing similar activities where the posting takes place; and
• posting and receiving entities are jointly and severally liable for salary and social security credits for posted employees for two years from the end of the posting.

Should the posting be deemed irregular:

• the employees will be considered to all intents and purposes employed by the entity that used the service (with the consequent applicability of the minimum terms and conditions provided by the Italian legal framework for working time and salary); and
• both the posting and the receiving entities will be subject to an administrative fine of €50 for each employee used and for each day of employment (for an amount in any case not less than €5,000 or more than €50,000).

In the case of violations in the posting of employees from a company established in another EU country to its own production unit in Italy, the National Labour Inspectorate has specified (Note 5398 of 10 June 2019) that the production unit in question can be considered an autonomous secondary office (to which a pecuniary administrative penalty can be applied) only if it is registered in the register of companies and has its own legal representative in Italy.

A representative office with merely promotional and advertising functions or that conducts information gathering, scientific or market research or preparatory activity for the opening of an operational branch, cannot be considered an autonomous secondary office. In the latter case, if the local unit belongs to the same business organisation, the fines for illegal secondment will be applied only to the foreign posting company (the one with legal personality) rather than to both entities.

For further information on this topic please contact Francesco Pedroni at Stanchi Studio Legale by telephone (+39 02 546 9522) or email (f.pedroni@stanchilaw.it).