Prepared by Marzio Scaglioni, Giulia Spalazzi, Davide Poli and Valentina Panettella
With the publication in the Official Gazette of Legislative Decree no. 122 of 15.9.2020, Italy also transposes Directive (EU) No 2018/957, amending Directive 96/71/EC concerning the posting of workers in the context of the provision of services.
The deadline by which member states should have officially complied with the European directive expired on 30 of July and, like Italy, today France, Germany, Belgium, Estonia, Lithuania, Luxembourg, Malta, the Netherlands, Czech Republic, Slovakia and Sweden are also aligned.
The new rules, officially in force from next 30 of September, will adapt the national law to the European one, by changing the Legislative Decree no. 136/2016 (the transposition of the European Directive 67/2014). The dispositions reiterate how companies have to guarantee the same conditions recognized to local workers even to posted workers, applying ipso jure, if more favorable, the same working and employment conditions provided in Italy by law and NCLA of all working sectors, in particular those provided for workers who carry out similar activities in the same place where the posting takes place.
Indeed, the list of working conditions has been extended, as well as reformulated in some areas, by applying the law of the host country, including accomodation regulations, indemnity or reimbursement of expenses in case of business trips or journeys requested by the Home company, as well as annual salary and leave.
Furthermore, the application of this decree, in part, is also extended to temp agencies, once again excluding the road transport sector.
Therefore, the new dispositions impose on companies – whatever the overall duration of the posting – a limit of 12 months, which can be extended for a further 6 months by the Ministry of Labour in case of motivated notification, after which the envisaged working conditions will be fully applied in the country of the Host company in accordance with the national law and NCLA more representative, excluding the conditions about termination of the employment relationship, the non-competition clauses and the regulations concerning supplementary funds.
Within this scenario, it is worth remembering how neither the Directive nor the implementation legislative decree have changed the procedures and the obligations regarding the notification of the secondment (with the exception of temp agencies), remaining in force within the same terms and procedures already provided for in article 10 of Legislative Decree 136/2016.
Likewise, neither the Directive nor consequently the legislative decree have in any way changed the issue of A1 certifications (whose overall duration, therefore, has again the limit of 24 months extendable only because of legitimate reasons), thus remaining completely unchanged the provisions already contained in Regulation no. 883/2004 (as amended by Regulation no. 987/2009).
Some of the “novelties” introduced by the Decree cannot be properly defined as such if we consider the pioneering role played in recent years by the Court of Justice ( e.g. the judgment of 12 February 2015, C-396/13, where the Court had interpreted the original notion of “minimum rates of pay”, giving the States the competence to determine their content).
However, this does not affect the importance of the novella which, as well as crystallize the rights of posted workers, aims to contrast more efficiently wage dumping and the perpetration of fraudulent practices.
For a deeper discussion, please contact:
PwC TLS Avvocati e Commercialisti
PwC TLS Avvocati e Commercialisti