Advice and assistance on administrative formalities in the context of transnational posting of employees and workers in Italy: registration, communication and appointment of the contact person domiciled in Italy. ONLINE SERVICE.
- THE NORMATIVE
The posting of workers carried out in the context of a transnational provision of services is currently regulated in Italy by Legislative Decree No. 136/2016.
The legislation concerns the foreign posting company, the posting party (the worker) and the final recipient of the service (the Italian company where the service is carried out), being applicable to the foreign companies, established in an EU or non-EU state, which, as part of a transnational provision of services, post one or more workers to another company, even if belonging to the same group, or to another production unit or recipient based in Italy (Art. 1, paragraph 1, Legislative Decree No. 136/2016).
The object of the legislation is therefore the performance of temporary work activities for a recipient located on Italian territory, which may be a seconded company belonging to the same group, a production unit, branch, or operational office of the foreign seconding company or a principal.
This includes the hypothesis in which workers, sent for a transnational service to an Italian branch of the foreign posting company or to another economic operator located in Italy - the posting subject - are subsequently employed for the performance of a contract at the head office or other production unit of a client company - the final recipient of the service - also located in Italy.
- SECONDED WORK
Seconding foreign employees on Italian territory is a practice strictly regulated by law. Any foreign company that performs services in Italy, including road cabotage, must comply with Italian employment laws for seconded employees, in particular
- the declaration obligations
- the working and employment conditions provided for Italian workers of the same level as the seconded company.
During the duration of the posting, national insurance contributions remain payable in the country where the posting company has its registered office.
One is therefore obliged to comply with the posting rules if:
- you have concluded a contract with a business partner from another country and must send some employees to Italy for a limited period of time in order to provide services
- an employee is transferred to a company in the same group but based in Italy.
In both cases, an employment relationship must exist between the company and the seconded personnel.
The rules also apply if the worker is recruited through a temporary agency and comes from an EU country other than the one where the company is based or carries out its activities. In that case, an employment relationship must exist between the worker and the temporary or interim employment agency.
For the purposes of the regulations, it is necessary to appoint a representative - contact person domiciled in Italy.
In the event of a breach of the obligations laid down, Article 12 of Legislative Decree 136/2016 provides for the following sanctions:
- administrative pecuniary sanction from €150 to €500 for each worker concerned in the event of breach of the obligation to notify the posting;
- administrative pecuniary sanction from €500 to €3,000 for each worker concerned in the event of breach of the obligation to provide, during the period of posting and up to two years from its termination, the documentation relating to the employment relationship, compulsorily in the Italian language;
- administrative pecuniary sanction from €2. 000 to €6,000 for breach of the obligation to designate a contact person domiciled in Italy, for the period of posting and up to two years from its term ination, appointed by the seconding party to produce, send or receive acts and documents, and endowed with powers of representation to liaise with the social partners concerned to promote second-level collective bargaining, with the obligation to make himself available in the event of a reasoned request by the social partners.
On the other hand, theretention obligation is to be considered as directly aimed at the exhibition to the supervisory bodies of copies of the in the Italian language of the documents contemplated therein. Therefore, the relative infringement is configurable both in the case of failure to exhibit and in the case of delivery of documents that have not been translated into Italian.
In any case, the amounts of the aforementioned administrative sanctions may not exceed €150,000.00.
The warning institute provided for in Article 13 of Legislative Decree No. 124/2004 is also applicable to the violations in question.
- OBLIGATIONS FOR THE FOREIGN POSTING COMPANY
The seconding company must:
- Make the prior declaration of posting of personnel employed in Italy by midnight of the day before the start of the secondment itself and communicate all subsequent changes within 5 days of the occurrence of the event. The Ministerial Decree 10/08/2016 and its annexes define the operating standards and transmission methods for the mandatory communication.
- Keep, by preparing a hard copy or electronic copy in Italian, the labour documentation (employment contract or other document containing the information referred to in Articles 1 and 2, Legislative Decree no. 152/1997), pay slips, schedules showing the beginning, end and duration of daily working hours, documentation proving the payment of wages or other equivalent document, as well as the certificate relating to the applicable social security legislation (model A1) and the public communication/registration of the establishment of the employment relationship, for the entire period of the secondment and up to two years after its termination.
- Designate a contact person electively domiciled in Italy to be responsible for sending and receiving acts and documents. Failing this, the place of business of the posting company is deemed to be the place where the recipient of the services has its registered office or resides, for the entire period of the posting and up to two years after its termination.
- Appoint a person, not necessarily the same as above, to act as a legal representative in order to put the social partners concerned in contact with the service provider for possible collective bargaining; this contact person is not obliged to be present at the place where the posted work is being carried out, but must make himself available in the event of a reasoned request, throughout the entire period of the posting and up to two years after its termination.
For the cabotage sector, there is a special telematic procedure.
During the period of posting, posted workers must be guaranteed the minimum levels of working and employment conditions laid down, by national, territorial or company (collective) agreements and regulations, for workers performing similar work in the place where the posting takes place.
Legislative Decree 136/2016 identifies minimum levels of working and employment conditions in the following areas:
- Minimum wage, includingovertime bonuses (this includes all asset-based payments arising from the employment relationship in a broad sense: the minimum wage must include the basic wage, the separate element of remuneration, allowances for length of service, superminimum pay (individual or for groups of workers if linked to the contractual classification in pay groups and/or the nature of the work performed); remuneration for overtime, night work and holidays; secondment allowances (if compensating for the inconvenience caused by the removal of workers from their usual environment), travel allowances
- Maximum work and minimum rest periods
- Minimum duration of paid annual leave
- Protective measures concerning the working and employment conditions of pregnant women or women who have recently given birth and minors under the age of 18
- Equal treatment between men and women and other non-discrimination provisions
- If working conditions are more favourable in the country where the posting company is based than in the host country, it is of course possible to maintain them during the posting
- If the initial installation and/or assembly of certain products are an integral part of the contract and must be carried out by qualified personnel, the minimum wage and annual leave requirements are not mandatory if the overall posting is less than 8 days (these are the cases of initial assembly or first installation of a good, provided for in a contract for the supply of goods, which are indispensable for putting the same good supplied into operation and carried out by qualified and specialised workers of the supply company.qualified and specialised workers of the supplying company: the "installation" must be carried out in a period not exceeding eight days, with the express exclusion of certain construction activities identified in Annex A of Legislative Decree No. 136/2016)
- SOCIAL SECURITY RULES FOR POSTED WORKERS
While temporarily working in another EU country, the posted worker can keep the social security coverage of the country where he/she worked before being posted.
The employer (posting company) is obliged to inform the administration of the host country in advance and request the so-called Portable Document A1 (PD A1) from the en of the country in which the posting company is based. The PD A1 document confirms that the posted worker is registered in the social security system of his or her country of origin and is not required to pay contributions in the country of posting.
When applying for PD A1, you must specify the start and end date of the posting in the other EU country. The maximum period that can be indicated on the form is 24 months.
If the posting lasts longer than 24 months, how can the employer:
- request the body issuing the PD A1 to grant an extension - this is subject to mutual agreement between the country of origin and the country of destination
- enrol the employee in the social security system of the host country.
DOWNLOAD THE POLISH INSTITUTE'S (ZUS) GUIDE TO OBTAINING THE pd A1 CERTIFICATE IN POLAND:
- CHARGES FOR THE ITALIAN SOCIETY (where the work is carried out)
- The seconding party (the company where the service is performed) which, among other things, remains jointly and severally obliged with the seconding party to pay the workers' wages and social security contributions, subject to the right of recourse.
- DOCUMENTATION TO BE PRODUCED IN THE EVENT OF AN INSPECTION
The following must be produced during inspections pay slips, schedules indicating the beginning, end and duration of the daily working time, proof of payment of wages or equivalent documents, public notice of the establishment of the employment relationship or equivalent documents, and the certificate relating to the applicable social security legislation.
This documentation must be available in Italian already available at the time of the site inspection by the supervisory personnel.
- IN CASE OF CABOTAGE?
For the case of road haulage companies carrying out cabotage operations in Italy, see the relevant article.
- WHAT DO WE DO?
We assist foreign companies in the compulsory administrative formalities in the case of personnel secondment to Italy, with the foreign company having the option of appointing us as the contact person for the purposes of the secondment, thus making it quick, simple and inexpensive for the foreign company to carry out the requested activity on Italian territory. We can also constantly assist the same company and its workers, even during any inspections by the supervisory body.
Please do not hesitate to contact us for a free, non-binding consultation: [email protected]
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