Consulting and assistance for administrative requirements in the field 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 as part of the 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 provided). foreign companies, established in an EU or non-EU State which, in the context of a transnational provision of services, post one or more workers to another company even if belonging to the same group, or in favour of another production unit or another recipient based in Italy (art. 1, paragraph 1, Legislative Decree no. 136/2016).
The object of the legislation is therefore the performance of work activities of a temporary nature in favour of a recipient located on Italian territory, which can be identified in a detached company belonging to the same group, in a production unit, branch, operational headquarters of the foreign detaching company or in a client.
This includes the hypothesis in which the workers, sent on the basis of a transnational service to an Italian branch of the foreign posting company or to another economic operator located in Italy - the posting party - are subsequently employed for the execution 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.
- UNATTACHED WORK
Secondment of foreign employees on Italian territory is a practice strictly regulated by law. Any foreign company providing services in Italy, including road cabotage, must comply with the Italian laws on employment for seconded employees, in particular:
- the declaratory
obligations - the working and employment conditions provided for Italian workers of the same level as the posted company.
During the period of the posting, national insurance contributions remain payable in the country where the posting company has its registered office.
You are therefore required to comply with the rules on posting if:
- a contract has been concluded with a business partner from another state and must send some employees to Italy for a limited period of time in order to provide services
- an employee moves to a company of the same group but based in Italy.
In both cases there must be a working relationship between the company and the seconded staff.
The rules also apply if the worker is hired through a temporary agency and comes from an EU country other than the one where the company is based or operates. In this case there must be an employment relationship between the worker and the temporary or temporary employment agency.
For the purposes of the regulations it is necessary to appoint a representative - contact person domiciled in Italy.
In case of violation of the obligations provided for, art. 12 of Legislative Decree 136/2016 provides for the following sanctions:
- a pecuniary administrative sanction from 150 to 500 Euros for each worker concerned in the case of violation of the obligation to communicate the posting;
- a pecuniary administrative sanction from 500 to 3,000 Euros for each worker concerned in the case of violation of the obligation to provide, during the period of posting and up to two years after its termination, the documentation relating to the employment relationship, which must be in Italian;
- a pecuniary administrative sanction from 2.000 to 6,000 Euros for violation of the obligation to appoint a contact person domiciled in Italy, for the period of secondment and up to two years after its termination, appointed by the posting agent to produce, send or receive documents and documents, and endowed with powers of representation to maintain relations with the social partners involved in promoting second-level collective bargaining with the obligation to make himself available in the event of a reasoned request from the social partners.
The obligation of preservation is, on the other hand, to be considered directly aimed at exhibiting to the copying supervisory bodies in Italian of the documentation referred to therein. Therefore, the relative violation is configurable both in the case of non-performance and in the case of delivery of documents not translated into Italian.
In any case, the amounts of the aforementioned administrative sanctions may not exceed Euro 150,000.00.
In addition, the warning system set forth in art. 13 of Legislative Decree no. 124/2004 is applicable to the violations in question.
- OBLIGATIONS FOR THE FOREIGN POSTING ENTERPRISE
The posting company must:
- Make the prior declaration of posting of personnel employed in Italy by midnight on the day prior to the start of the secondment and notify all subsequent changes within 5 days of the event. The Ministerial Decree 10/08/2016 and its annexes define the operating standards and the methods of transmission of the mandatory communication.
- Keep, by preparing a paper or electronic copy in Italian, the documentation relating to employment (employment contract or other document containing the information referred to in Articles 1 and 2, Legislative Decree No. 152/1997), pay slips, slips indicating the beginning, end and duration of daily working hours, documentation proving 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 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 in charge of sending and receiving documents. Failing this, the head office of the posting company shall be considered the place where the registered office or residence of the recipient of the service is located, for the entire period of the posting and up to two years after its termination.
- Designate 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 with a view to possible collective bargaining; this contact person is not obliged to be present at the place of performance of the work on secondment, but must make himself available in the event of a reasoned request, throughout the period of secondment and up to two years after its termination.
For the cabotage sector, a special telematic procedure is foreseen.
During the period of posting, posted workers must be guaranteed the minimum levels of working and employment conditions laid down in legal provisions and agreements (national, territorial or company collectives) for workers who perform similar work at the place where the posting takes place.
Legislative Decree 136/2016 identifies minimum levels of working and employment conditions in the following areas:
- Minimum wages and salaries, including those increased for overtime work (this includes all payments of assets involved in the employment relationship in the broadest sense: the minimum wage must include the basic wage, the separate element of remuneration, allowances linked to length of service, the super-minimals (individual or for groups of workers if linked to the contractual classification in pay groups and/or to the nature of the work carried out); compensation for overtime, night work and holidays; posting allowances (if compensating for the discomfort caused by the removal of workers from their usual environment), the travel allowance
- Maximum working periods and minimum rest periods
- Minimum length of paid annual leave
- Protective measures with regard to the working and employment conditions of pregnant women and women who have recently given birth and minors 18
- Equal treatment for men and women and other non-discrimination provisions
- If the 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 total posting is less than 8 days (these are the hypotheses of initial assembly or first installation of a good, provided for in a contract for the supply of goods, which are essential to put into operation the same good supplied and carried out by thequalified and specialized workers of the supply company: the "implementation" must take place within a period not exceeding eight days, with the express exclusion of certain construction activities identified in Annex A of Legislative Decree 136/2016)
- SOCIAL SECURITY RULES FOR POSTED WORKERS
While working temporarily in another EU country, the posted worker can maintain the social security cover of the country where he or she worked before being posted.
The employer (posting company) is obliged to inform the administration of the host country in advance and to request the so-called portable document A1 (PD A1) from the en of the country in which the detachment company is based. PD A1 confirms that the posted worker is registered with the social security system of his country of origin and is not required to pay contributions in the country of posting.
When applying for PD A1, the start and end date of the posting to the other EU country must be specified. The maximum period that can be indicated on the form is 24 months.
If the posting lasts longer than 24 months, as the employer can:
- request the body issuing PD A1 to grant an extension - this is subject to a reciprocal agreement between the country of origin and the country of destination
- have the employee enrolled in the social security system of the host country.
DOWNLOAD THE GUIDE OF THE POLISH PREVIDENCY INSTITUTE (ZUS) FOR THE OBTAINMENT OF CERTIFICATE pd A1 IN POLAND:
- CHARGES FOR THE ITALIAN COMPANY (where the work is performed)
- The posting party (the company where the service is provided) which, among other things, remains jointly and severally liable with the posting agent to pay workers' wages and social security contributions, without prejudice to the right of recourse.
- DOCUMENTATION TO BE PRODUCED IN THE EVENT OF AN INSPECTION
The following shall be presented during the inspection visits i pay slips, slips showing the beginning, end and duration of daily working time, documents proving payment of wages or equivalent documents, public notice of employment or equivalent documents and the certificate relating to the applicable social security legislation.
This documentation must be available in Italian already at the time of the on-site inspection by the security staff.
- 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 the secondment of personnel to Italy, with the right for the foreign company to appoint us as the contact person for the purposes of the secondment, thus making it quick, simple and economical for the foreign company to carry out the required activity on Italian territory. We can also assist the company and its workers in a constant manner, even during any inspections by the supervisory body.
Please do not hesitate to contact us for a free and non-binding interview: [email protected]
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