Mandatory communication of posted workers in Italy

Directive 2014/67/EU Italy

The Enforcement directive 2014/67/EU in Italy has been transposed within the Italian national framework by Decreto legislativo n. 136 of 23 July 2016 and Decreto del Ministero del Lavoro e Politiche Sociali of 10 August 2016. According to this national law, a communication of posted workers to Italy must be submitted to the Labor Authorities starting from the 26th of December 2016, for all assignments starting from that day on. The communication is due within the 24 hours before the commencing of the assignment.

It is important to underline that employees who have been seconded to Italy from either EU or non-EU countries are subject to this obligation (see art 10 Dl.vo. 136/2016).

In other words, all workers who are not enrolled as employees in the company, but assigned to Italy on a secondment contract.

With the note 3/2016, the Ministry of Labor clarified that companies have the possibility to submit a late communication for all posting that have started from the 22nd of July 2016, and that were still in force on the 26th of December 2016.
This late communication is permitted until the 26th of January 2017, provided that the postings are still in force on that day.

Examples:

1. posting from the 10th Jan 2017 to the 30th March 2017 -> communication to be submitted with the 9th of January (24 hrs before the beginning of the posting)
2. posting from the 1st of August 2016 to the 30th of April 2017 -> communication to be submitted within the 26th of January (as the starting date of the posting was after the 22nd of July)
3. posting from the 1st of July 2016 to the 28th of February 2017 -> no communication is due (as the posting started before the 22nd of July
4. posting from the 10th of October to the 10th of December 2016 -> no communication is due (as the posting end date is before the 26th of January 2017)
5. posting from the 1st of August 2016 to the 20th January 2017 -> no communication is due (as the posting end date is before the 26th of January 2017)

Summary of Mandatory Fulfillments

1. 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;
2. Designate a representative within Italy who is required to be in possession of certain documents of the undertaking and respond to the document requests of the Italian Authorities; and
3. Retain the documents during the posting 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.

Penalties

• Failure to comply with the notification requirement can lead to an administrative penalty from € 150 to € 500 per employee;
• If the employer fails to the 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.