What companies shall be aware of when they post their employees to Italy

published 24 October 2023 | reading time approx. 2 minutes

With the Directive 2014/67/EU the European Parliament establishes a series of obligations to “prevent and sanction any violation and circumvention of existing rules” and to “ensure compliance with an appropriate level of protection of the rights of workers posted for a cross-border provision of services”. It has been implemented in Italy in 2016, with Legislative Decree No. 136 of 17 July 2016. It establishes a framework of rules to be complied with and the basic working and employment conditions that must be guaranteed to workers posted to Italy by companies based in another EU member state or in a non-EU state.

To this end, the Ministry of Labor and Social Policy has created a dedicated website, which can be consulted in Italian, English, German and Romanian, and a specific section on the cliclavoro website, available in Italian and English, where the administrative notification of posting can be made.

To begin, all foreign contractors must register on the website of the Ministry of Labor and Social Policy (Cliclavoro) and send a communication with an indication of the place and duration of the posting, the personal data of the posted workers, and the identification data of the release agent and that of the receiving company. The company shall also designate a contact person electively domiciled in Italy responsible for sending and receiving acts and documents and a person with powers of representation to manage relations with the social partners concerned to promote second-level collective bargaining.

The violation of the reporting requirement is punishable by a fine of 180 to 600 euros for each worker concerned, while the failure to designate the contact person is subject to a fine of 2.400 to 7.200 euros. In addition, the foreign company is also obliged to retain, in both original language and Italian version of each document, the documents related to the work performed in Italy by the foreign workers, i.e., their employment contract, the public notice of establishment of the employment relationship, the pay slips, the documents that indicate the beginning, end and duration of daily working hours, the documentation proving the payment of wages and the certificate relating to the applicable social security legislation. All these documents shall be retained for the entire duration of the posting and for 2 years thereafter. The failure to comply with the obligation can result in an administrative fine of 600 to 3.600 euros for each worker concerned.

In addition to the administrative fines, the disregard or incorrect carrying out the fulfillments summarized above could lead the authorities to consider the posting as inauthentic, or to the presumption that the same constitutes a form of fraudulent staff leasing.

In fact, the law establishes that in cases where the posting in favor of a company established in Italy is not authentic, the worker is considered for all purposes to be employed by the person who used the service from the day of the start of the activity. In addition, the seconding party and the user of the service are punished with an administrative fine of 50 euros for each worker employed and for each day of employment, with a minimum limit of the fine of 5,000 euros and a maximum limit of 50,000 euros.

If fraudulent staff leasing is determined, then the involved parties risk the criminal sanction of a fine of 20 euros for each worker involved and for each workday. In the worst case scenario, the parties also risk the application of the so-called "maxi-sanction" for undeclared work.

Last, but not least, it is important to check whether the posted worker of non-EU nationality have a valid residence permit to work in Italy. If they do not have it, the employer and user risk imprisonment of up to 4 years and a fine of up to 15,493 euros.

It is, therefore, very important that all postings are examined on a case-by-case basis in order to verify their authenticity, the administrative and legislative obligations that fall on them and thus to ensure safe and licit work to employees and to the companies involved in the cross-border provision of services.