Legislative Decree No. 122/2020 has been published in State Gazette No. 229 of 15 September 2020 which, by implementing Directive (EU) 2018/957 on transnational secondment (“posting”), has brought about a series of amendments to the laws and regulations in force represented, on the subject-matter, by Legislative Decree No. 136/2016.
Directive (EU) 2018/957, adopted on 28 June 2018, as well as the corresponding implementation decree, develop along a standpoint aimed at fighting against cases in which the European competitive market is changed such as, for instance, social and salary dumping and fraudulent transnational secondment (“posting”).
The main latest developments brought to the implementation decree commented herein may be summarised in the following three main aspects: (i) extension of the recipients of the rules; (ii) new work and employment conditions of the seconded (“posted”) workers; (iii) change to the maximum duration of transnational secondments (“postings”).
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Extension of the recipients of the rules
In so far as the first aspect is concerned, it is first of all worth highlighting that the scope of application of the rules has been extended to some more complex cases of secondment (“posting”) made by staff leasing agencies which, in the past, were not subject thereto. In particular, the rules have been extended to the agencies established in a Member State other than Italy which – within the scope of a transnational provision of services – second (“post”) the relevant worker to one of their own productive units or to another undertaking, even belonging to the same group, having registered office in Italy and, still, to the case in point of the secondment (“posting”) carried out by the staff leasing agencies established in a Member State other than Italy that second (“post”) workers to Italian user companies.
In said respect, the implementation decree specifies that the workers involved in any such ‘triangular trade’ are deemed seconded (“posted”) in Italy by the staff leasing agency with which the employment contract is in place.
As a consequence, a new informative obligation weighs upon the user undertaking having registered office in Italy, which is under an obligation to inform the seconding (“posting”) staff leasing agency as to the work and employment conditions applicable to seconded (“posted”) workers.
New work and employment conditions of seconded (“posted”) workers
In so far as this second issue is concerned, the implementation decree foresees that the same rules valid for local workers must apply to any and all seconded (“posted”) workers. Hence, under article 4 of the Decree, there is a list of the issues for which the application of the law of the host Member State is foreseen. The above in order to ensure clear and special protection of the seconded (“posted”) workers which, it is worth clarifying herein, remain the employees of the seconding (“posting”) employer.
Amendment to the maximum duration of the secondment (“posting”)
Finally, the third aspect of the amendment commented herein consists in the reduction of the maximum duration of the secondment (“posting”) from 24 to 12 months, which may be extended to 18 months upon the relevant grounded notice to said extent served on the Ministry of Employment and Social Policies. Once the aforesaid period has elapsed, the entire work and employment conditions provided for in Italy under the law and regulatory provisions and under the national and territorial collective bargaining agreements, save for those concerning the procedures and the conditions for ending and terminating the employment agreement, non-compete clauses and sector supplementary pension schemes, shall apply to the seconded (“posted”) workers.
In addition, still in view of ensuring an adequate duration of the secondment (“posting”) and of preventing evasive solutions to the laws and regulations from being implemented, in the Decree it is clarified that, in the event of the replacement of one or more seconded (“posted”) workers, the duration of 12 (or 18) months shall be fixed by the sum of the entire periods of work rendered by each single worker.
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