National Labour Inspectorate: the circular on the secondment of workers in the EU

With circular No. 1/2017, the National Labour Inspectorate provided clarifications to the inspectors on the “transnational secondment of workers in the framework of the provision of services“. The attention of the Inspectorate focused on the implementation of Legislative Decree 136/2016, which in addition to regulating the typical cases of cross-border secondment, extends, among others, its regulations to the agencies providing employment services established in another member State which post workers at a user company with office or production unit in Italy. Specifically, the circular highlights all those situations where the secondment can be considered artificial, i.e. whenever the employer that seconds workers and/or the employer that receives the workers established fictitious posts in order to circumvent national legislation on work conditions or for the protection of safety of seconded workers. To this end, the Inspectorate clarifies that the fictitious secondment reasons may also coincide with those of unlawful intervention referred to in Legislative Decree 276/2003, even if they are different from the latter. Finally, the circular highlights the punitive nature of legislative Decree 136/2016. Specifically, if the employer who received the workers violated the law will have to accept the seconded worker as its employee, with the consequent full application of laws and safeguards established by the national legislation on labour and social security.