Effective from 26th Dec 2016, Italy has finally transported into the local legislation the Directive 2014/67/EU, on the legal fulfillments required when posting a worker in our country.
The new Italian obligation shall apply any time there is a foreign service provider posting to Italy independently of the duration of the posting.
If you need our assistance for new postings to Italy instead, it will be a pleasure for our team to assist you and your clients regarding the provisions related to the national transposition of the Directive 2014/67/UE for the posting of workers. Our firm has extensive experience dealing with this notification process
A. Mandatory fulfillments in Italy
I. Duty of filing a communication of the posting (“Modello UNI Distacco UE”) to the Italian Labor Authorities within one day before the commencement of the posting. A communication of change of the posting is required no later than 5 days after such changes take place;
II. Retain the documents during the posting and up to 2 years after its termination and making them available upon request of the Italian Authorities: (i) employment contract, (ii) payslips, (iii) time-sheet with daily work time, (iv) proof of payment of wages, (v) copy of “Modello UNI Distacco UE”, (vi) social security coverage A1.
III. Designate a liaison officer domiciled in Italy who is required to be in possession of the documents mentioned above (see point II) of the undertaking and respond to the document requests of the Italian Authorities; and
IV. Designate a person, not necessarily the same as the one above, who will act as legal representative to put the interested social partners in contact with the service provider for possible negotiations. For the entire period of posting and up to two years following its termination, the legal representative must be available in case of a motivated request, regardless his location.
V. Notice of assignment ensuring that, whatever the law applicable to the employment relationship, the undertakings guarantee workers posted in Italy the terms and conditions of employment covering the following matters which, in Italy are laid down by collective agreements:
- maximum work periods and minimum rest periods;
- minimum paid annual holidays;
- the minimum rates of pay, including overtime rates; this point does
- not apply to supplementary occupational retirement pension schemes;
- the conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings;
- health, safety and hygiene at work;
- protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people;
- equality of treatment between men and women and other provisions on non-discrimination.
For the purposes of this Directive, the concept of minimum rates of pay is defined by the national law. In Italy there is no statutory minimum wage and so it is the social partners through national collective bargaining that play a key role in fixing wages. The minimum wage is the one fixed in the collective agreement of the relevant sector, stipulated by the most representative trade union organizations at national level.
- In the case of initial assembly and/or first installation of goods where this is an integral part of a contract for the supply of goods and necessary for taking the goods supplied into use and carried out by the skilled and/or specialist workers of the supplying undertaking, the minimum paid annual holidays and the minimum rates of pay, including overtime rates shall not apply, if the period of posting does not exceed eight days.
- Failure to comply with the notification requirement can lead to an administrative penalty from € 150 to € 500 per employee;
- If the employer fails to retain the documents, he is liable to an administrative penalty up to € 3.000 per employee;
- In case of a non-fulfillment of the designation of the representative there is an administrative penalty up to € 6.000 per employee;
- Whereas the posting is not genuine the employee will be deemed employed by the Italian company who has received the service, and the employer will be liable to an administrative fine up to € 50.000.
C. Legislative references: Directive 96/71/CE Article 1
Directive 96/71/CE Article 1
This Directive shall apply to undertakings established in a Member State which, in the framework of the transnational provision of services, post workers, in accordance with paragraph 3, to the territory of a Member State.
3. This Directive shall apply to the extent that the undertakings referred to in paragraph 1 take one of the following transnational measures:
a) post workers to the territory of a Member State on their account and under their direction, under a contract concluded between the undertaking making the posting and the party for whom the services are intended, operating in that Member State, provided there is an employment relationship between the undertaking making the posting and the worker during the period of
b) post workers to an establishment or to an undertaking owned by the group inthe territory of a Member State, provided there is an employment relationship between the undertaking making the posting and the worker during the period of posting; or
c) being a temporary employment undertaking or placement agency, hire out a worker to a user undertaking established or operating in the territory of a Member State, provided there is an employment relationship between the temporary employment undertaking or placement agency and the worker during the period of posting.