Prepared by Francesca Tironi and Paola Dell’Utrii
Article 13 of Decree-Law no. 146/2021 (the so-called ‘’Fiscal Decree 2021’’) has recently replaced Article 14 of Legislative Decree no. 81/2008 (the so-called ‘’Consolidated Act on Safety at Work’’) with specific reference to the suspension of the business activity due to ascertained irregular work and health and safety violations, specifically intervening in the field of supervision and suspension of the business activity in case of serious violations. To this end, the powers of the National Labour Inspectorate (‘’INL’’) have been extended, and coordination between the INL and local health authorities (‘’ASLs’’) has been strengthened within the framework of occupational health and safety surveillance activities carried out at a local level.
Finally, the National Information System for Prevention (the so-called ‘’SINP’’) has been implemented to ensure a more effective participation in the supervision activity and a greater sharing of sanctions imposed on companies.
Following the introduction of Article 13, the National Labour Inspectorate (‘’INL’’) issued circular no. 3/2021, which provided the first operational indications on the scope of this new provision. More specifically, with the same circular INL clarified that in order to adopt the measure of suspension for irregular work it is necessary that at least 10% (before the intervention of Decree-Law 146/21, the threshold was 20%) of employees present at the workplace is employed, at the time of the inspection, without prior notice of establishment of the employment relationship (familiar employees and shareholders are not considered for the purposes of suspension).
From another point of view, INL explains that the suspension measure in matters of health and safety must be adopted whenever serious violations in matters of health and safety are ascertained, specifically those identified in the new Annex I to Legislative Decree no. 81/2008 (without the need for repetition under Article 14, as was previously the case) or violations that expose to risks of a general nature (such as failure to prepare the risk assessment document); to the risk of falling from a height; to the risk of burial; to the risk of electrocution.
Thus, if a suspension for safety violations is imposed, the employer cannot use the employee concerned until the measure is revoked. INL specifies in this regard that, ‘’since the cause is not attributable to the employee’’, the employer is obliged to pay him/her the salary due and to pay the relevant social security contribution, even during the suspension.
Finally, the circular confirms that it is only possible to lodge an appeal against the suspension measure imposed due to the presence of at least 10% of irregular employees, within 30 days of its adoption. On the other hand, with regard to violations in the field of safety at work, a matter generally referred to the criminal court, the only decree concerning the conclusion of the proceeding issued at the end of the prescription procedure for the extinction of fines determines the forfeiture of the measure itself.
Having clarified the above, INL returned to the matter with circular no. 4/2021 providing further clarifications. First of all, the Inspectorate explained that in the event of health and safety violations as referred to in the abovementioned Annex I – such as i) the lack of education and training (if it is mandatory, the suspension is automatic; in the case of specific training, the employee’s duties must be concretely compared with the missing training or instruction); ii) lack of PPE for falls from a height or for vacuum (if the PPE has been provided but not used by the employee, suspension is not triggered); iii) lack of support reinforcements; iv) work near power lines; (v) presence of live bare conductors; (vi) failure to protect against direct and indirect contacts; (vii) failure to supervise safety devices (there will be a suspension of the activity for the sole fact that the safety device has been removed or modified, without being necessary to ascertain personal responsibility for the removal or modification); or (viii) cases of undeclared work – a single suspension measure (and a single revocation measure) will be adopted between the territorial offices and the local health authorities.
With reference, instead, to the hypotheses of failure to draw up the Single Document for the Evaluation of Interference Risks (‘’DUVRI’’) (if it is kept in a place other than the place of the inspection, it may be produced within twelve o’clock of the following working day) and/or the emergency plan; failure to set up the prevention and protection service and to appoint the persons in charge or failure to draw up the operational safety plan; or in the event of the detection of non-compliant personnel amounting to at least 10% of the employees employed, such violations may lead to the suspension of the activity even in the event of inspections carried out only by the “administrative” staff of INL, as well as by the supervisory officers of the National Social Security Institute (‘’INPS’’) and the National Institute for Insurance against accidents at work (‘’INAIL’’).
Finally, from a sanctioning point of view, pursuant to art. 14, paragraph 15 of Legislative Decree no. 81/2008, the suspended person who does not request the revocation and does not comply with the imposed suspension will be punished with the imprisonment up to 6 months in case of suspension for violations concerning the protection of health and safety at work; and with the imprisonment from 3 to 6 months or with a fine from 2,500 to 6,400 Euros in case of suspension for irregular work.
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