Effective 26th December 2016, regulations have been published which specify the procedure for submitting new mandatory notifications for companies posting foreign national workers to Italy.
It is not clear if the provisions of legislative Decree N.136 apply specifically to posting of workers in the context of the provision of services or to any postings, even if not expressly linked to the transnational provision of services under a specific contract. In fact, the situation of workers who are posted to provide “services” in-house from the headquarters to the subsidiary appears to fall outside the objectives of the Directive and – as a consequence – outside the objectives of Decree N.136.
As a consequence, it is not clear if there are exceptions to the obligations.
Apparently, penalties listed in article 12 of the decree do not apply to companies established outside the EU. The website where the posting employers are required to sign up is not active yet; it is expected by 26th December 2016. It is also not clear if a third party can act on behalf of the sending employer with regards to the obligations concerning mandatory communications and documents retention.
Article 12 of the decree lists the following penalties:
- Sanctions for non-complying with mandatory communications: fine from €150 to €500 for each worker involved (in any case, the fine cannot exceed €150,000)
- Sanctions for non-complying with document retention obligations: fine from €500 to €3000 for each worker involved (in any case, the fine cannot exceed €150,000)
- Sanctions for non-complying with the obligation to have a representative domiciled in Italy in charge of receiving/sending any official documents: fine from €2000 to €6000
Who is affected?
As we noted in our previous alert, Decree N.136 (in force since 22nd July 2016) implements EU Directive 2014/67 (concerning the posting of workers in the framework of the provision of services), and applies to:
- European Union (EU) companies posting (seconding) workers to a company in Italy (including to a company within the same group)
- EU placement agencies posting workers to Italy
- Non-EU companies posting workers to Italy
What are the notification requirements?
Any foreign employer who wishes to post employees to Italy must submit a compulsory electronic notification (electronic form UNI_Distacco_UE) through the Labour and Social Policy portal before the end of the day preceding the start date of posting.
Any variation to the posting conditions must be communicated through the same system within five days.
The information provided through the dedicated form (number of workers involved, start/end date of the posting, place of work, host entity etc.) will be available to the Labour Inspectorate, the National Social Security Agency (INPS) and the National Workers compensation authority (INAIL).The procedure requires the posting employer to register and create an account in the online system.
What other requirements are introduced?
- Document storage: During the posting and up to two years after its termination, the posting company is obliged to keep on file the documentation related to the assignment (including employment contract, payslips, notice of start date, end/duration of working time, proof of salary payments, certificate of coverage related to the applicable social security legislation)
- Appoint a representative domiciled in Italy: During the posting and up to two years after its termination, a legal representative based in Italy must be appointed in charge of receiving/sending any official documents. In absence of this, the host company is considered to act as representative of the foreign posting entity
- A representative responsible for dealing with the social parties involved in labour negotiations must also be appointed
Companies posting foreign national employees to Italy should ensure that they comply with the new notification and document retention requirements.
For further information on this topic or for advice on Italian immigration in general, please contact us at firstname.lastname@example.org.