The National Employment Inspectorate (”INL”), with note no. 9550 of 6 September 2022 set the new provisions of Legislative Decree no. 105 of 30 June 2022, (the “Decree“) on leave and time off and other measures for the protection of caregivers.
The Decree, also known as the “Work-Life Balance Decree” entered into force on 13 August 2022, implemented Directive (EU) no. 2019/1158 of the European Parliament and Council on the work-life balance for parents and caregivers.
The INL note summarises the main changes introduced by the Decree for the individual measures.
Compared to the previous regulations, the Decree introduced Art. 27-bis of Legislative Decree no. 151, of 26 March 2001 ( Consolidated Law supporting maternity and paternity – “TU”), on compulsory paternity leave. It established that the working father (including adoptive or foster) must abstain from work for ten working days, not divisible into hours from the two months preceding the presumed date of birth and within the following five months, and can be used on a non-continuous basis.
The leave is doubled to 20 days for multiple births.
This leave is in addition to the alternative paternity leave, governed by art. 28 of the Consolidated Law, to which the father is entitled in the event of the mother death, serious infirmity or abandonment, and when there is the father exclusive custody of the child, as an alternative to maternity leave.
The leave entitles the father to a daily allowance equal to their entire salary.
The INL note stated that during the paternity leave (mandatory and alternative) the working father cannot be dismissed, for the leave duration and until the child is one year old. In resignation cases, during the period when dismissal is prohibited, the father who has taken paternity leave is entitled to the allowances under the law and contractual provisions for dismissal (such as notice allowance and NASPI) and is not required to give notice.
The Decree amended paragraph 1 of Art. 34 of the Consolidated Law and established that until the twelfth year (and not the sixth) of the child’s life (or from the child’s entry into the family for adoption or fostering cases), the mother and father are entitled to a compensable period of three months, non-transferable to the other parent.
Both parents are individually entitled to a further indemnifiable period of three months, for a maximum indemnifiable period taken collectively of nine months (and not six).
The INL note stated that the parents’ maximum limits under Art. 32 of the Consolidated Law were unchanged.
The single parent (including those having sole custody) is granted 11 months (and not ten) of continuous or non-continuous parental leave, of which nine months (and not six) can be compensated at 30 per cent of the salary. In sole custody cases, the other parent loses the right to the unused leave.
INL stated that, if the parental leave is used continuously, this includes any public holidays. This applies to non-continuous leave, where the different periods of absence are not alternating with returning to work.
INL pointed out that parental leave is counted in the seniority and does not entail a reduction of holidays, rest, thirteenth month salary or Christmas bonus, except for accessory remuneration connected to actual workplace presence. This is without prejudice to more favourable collective bargaining provisions.
Based on the new provisions introduced by the Decree, in priority order, the cohabiting spouse is treated in the same way as the cohabiting partner under civil partnership and the de facto cohabitant of the disabled person in a serious condition.
Leave may be taken within 30 days (and not 60) from the application, and cohabitation may be established after submitting the application, provided that it is guaranteed throughout the leave.
With the new provisions introduced by the Decree, the “sole caregiver” principle is superseded. The principle under the previous system established that no more than one worker could be granted leave for assistance to the same severely disabled person. This excluded parents for whom this option was always available.
As a result of the changes introduced by the Decree, priority was given to the change of employment contracts from full-time to part-time. This applies to oncological or serious chronic degenerative illnesses affecting the spouse, civil or de facto cohabiting partner.
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The Labour Inspectorate, with note no. 1037 of 26 November 2020, intervened on an investigation of offences against an employing party in a “labour-intensive” contract.
Art. 4 of the Decree Law 124/2019 (the “Fiscal Decree“) added to Legislative Decree 241/1997 the new art. 17bis, which imposes new obligations on employing parties in labour-intensive contracts.
Particularly, as of 1 January 2020, contracting companies must request their contractor and subcontractors, a copy of the payment authorisations relating to withholding taxes, which were withheld from workers directly employed in any work or service under the contract. The payment of withholding tax is made by the contractor and subcontractor, with separate powers of attorney for each employing party, without the possibility of compensation.
The same provision stated that if there were a violation of these obligations, payment of the fees accrued by the contractor could be suspended up to 20 per cent of the value of the work or service “or by an amount equal to the unpaid withholding tax according to the data resulting from the documentation sent.”
The Labour Inspectorate, in its note, referred to the Inland Revenue circular no. 1E of 12 February 2020 which pointed out that the explanatory report in art. 4 identifies the purpose of the obligations to counter the “phenomenon consisting in the omitted or insufficient payment, including through undue compensation, of withholding taxes on employees and similar income recipients.” This takes place through systems which charge the employing party involved with the “labour-intensive” contracts.
The violation of the employing party’s obligations is sanctioned by a pecuniary sum equal to that imposed on the contractor for the incorrect determination and execution of withholding taxes, or late payment, without the possibility of compensation.
The Inspectorate note stated that the Inland Revenue specified: “this sum is not due when: despite the employing party not having correctly fulfilled the obligations under paragraphs 1 to 3, the contractor or subcontractor correctly fulfilled the obligations, or availed itself of the voluntary correction of tax return under article 13 of Legislative Decree no. 472 of 18 December 1997, to remedy the violations committed prior to being contested by the control bodies”.
According to the Inspectorate, the employing party ‘s control obligations were aimed exclusively at making the tax obligations of entrusted companies effective. Their violation cannot be ascribed to labour and social legislation violations, for which the Inspectorate may have jurisdiction.
Ready to go again but with what rules?
The National Labour Inspectorate provides detailed instructions to the territorial inspectorates to undertake checks on compliance with the contents of the protocol shared between the Government and the social partners on 14 March 2020 and on compliance with the precautionary measures to be taken for the safety of workplaces and workers. Vittorio De Luca, Antonella Iacobellis and Martina De Angeli analyse for Guida al Lavoro of Il Sole 24 Ore the operational guidelines to manage Phase 2.
Click here to read the DLP insights related to the matter and the considerations of the Firm.
In order to facilitate the activity of the Prefects at a decisive moment such as that of the so-called Phase 2, the National Labour Inspectorate (“INL”), on 20 April 2020, published note no. 149 (“Note INL no. 149”), with which it provides a real operating guide for its territorial offices, to contribute, at the request of the Prefectures, to the necessary checks on the occurrence of the conditions provided for the prosecution – in case where it is permitted – of production, industrial and commercial activities, with a view to indispensable synergy in the management of the current pandemic emergency.
These requests are in response to the circular of the Ministry of the Interior dated 14 April 2020, prot. no. 15350/117 (Annex A to the INL Note no. 149) which provides clarifications regarding the D.P.C.M. 10 April 2020 and which, among other things, highlights the need for the Prefectures to request the collaboration of the competent services of the Local Health Authorities (“ASL”) and the support of the INL’s territorial articulation, for the purposes of control:
Source: full italian version published on Guida al lavoro – Il Sole 24 ore.
The National Labour Inspectorate (“INL”) issued two notes, one shortly after the other, used to provide the first clarifications concerning the inspection procedures for worksites in light of the pertinent guidelines, shared in the “Joint Protocol on regulation of measures for contrasting and containing the spread of the Covid-19 virus” (the “Protocol”) signed by the stakeholders on 14 March 2020 (recently updated last 24 April).
Note 131 of 10 April 2020
Note no. 131 of 10 April 2020 has the objective of making workplace conduct uniform and consistent including due to the evolution of the pertinent emergency regulatory framework. A regulatory framework which, as should be recalled, has:
According to the INL inspection activity will be primarily focussed on implementation procedures, by the employers, of organisational and management procedures set up by the authorities and subject matter of the aforesaid Protocol.
It was further explained that the professionalism of the inspectors may be useful also in terms facilitation, mediation, deflation and verification of the processes for using public resources dedicated to support for families, workers, companies and credit, such as those to access social safety nets.
Note 149 of 20 April 2020
With the subsequent note no. 149 of 20 April 2020, INL provided further explanations concerning its inspectors’ control procedures on observance of the conditions required to continue production, industrial and commercial activities.
The note states that the Inspectors must perform inspection activities in close collaboration with the competent offices of the Local Healthcare Agencies, and with which they must previously establish a plan containing lists of companies to focus controls on. This is also envisaged to make it easier to correctly identify the objectives to pursue. However, should the inspectors find themselves faced with clear violations of a certain seriousness and urgency, requiring immediate on-site inspections, they may still perform them even without compliance with the aforesaid procedure.
In addition, the note specifies that for these types of inspections, the selection of inspectors to use must primarily be done on a voluntary basis and, above all, they must be provided with personal protection equipment suitable for the purpose.
Lastly, the note contains annexes such as (i) “guidelines for inspections on the anti-contagion protocol”, (ii) a report form for access and inspection entitled “Covid-19”, (iii) a list of personal protection equipment (PPE), with relative instructions for use for inspection personnel and, lastly, (iv) a check list with the inspections to perform; this is a type of questionnaire with yes/no answers to be filled out by the inspector.
In terms of punishment, if the inspectors find failure to comply with one or more of the prevention measures in the “Protocol”, they will not proceed by imposing a sanction on the employer. They must transmit the results of the inspection to the competent Prefecture, i.e. the access report and filled in check list, summarising the omissions and/or failures they found for adoption of any pertinent measures. It is then up to the Prefecture, based on this report, to adopt any measures, including of an interdictory nature, applied to the company.
The National Labour Inspectorate (“INL“), with note 5398/2019provided its opinion regarding a hypothesis of transnational posting of workers, carried out by a company established in an EU country in favour of its own production unit located in Italy.
Case in question
The inspectors objected to a case of non-authentic posting, pursuant to Article 3, paragraph 5, of Legislative Decree 136/2016, against the same employer that assumes the role of host and home organisation.
Although the inspectors found two distinct illegal acts – posting of workers by the company’s head office and their use by the Italian head office of the same company – they attributed them to a single subject, since they could not identify two different employers.
Legislation of reference:
Article 3, paragraph 5, of Legislative Decree 136/2016 provides that “in the event that the posting is not authentic, the posting agent and the subject that has used the services of the posted workers shall be punished with a pecuniary administrative sanction of 50 Euro for each worker employed and for each day of employment“.
The home organisation’s conduct in posting workers is thus punished, as is that concerning the use of the same workers by the host company.
The question has therefore arisen as to whether the only subject – host and home organisation – should be sentenced to the double penalty, in view of the double infringement.
The conclusions of the INL
Before going into the matter, the INL pointed out that the production unit of a given company can be considered as an autonomous secondary office against which to dispute illegal acts and adopt relative sanctions, only if it constitutes a separate centre of responsibility. This is the case when the secondary office/production unit is a mere representative office, with exclusively promotional and advertising functions, for the collection of information, scientific or market research, or if, for example, it carries out a preparatory activity for the opening of an operational branch.
In other words, in the opinion of the INL, the secondary office of a company may be considered as a separate legal entity if it is registered in the commercial register and identified in Italy through its own legal representative.
In this case, again according to the INL, it would seem that there is no other relationship between the home organisation and the host company, since the workers are sent from the main office of the foreign home company to its own production unit in Italy, which is not an autonomous legal representation managed exclusively by a person appointed by the same head office.
In view of the above, in this case, given that the affiliation of the home organisation and the host company belong to the same employment organisation, only one penalty is applicable, to be imposed on the only subject endowed with legal status, i.e. the home organisation.
The National Labour Inspectorate, with Circular Letter no. 1881 of 25 February 2019, has clarified aspects concerning the application of Article 4, Workers’ Statute, in the event of occurrence – following changes in the company ownership structure (mergers, transfers, incorporations, leases of company or business lines) – of a change of ownership of a company that has installed video surveillance systems or other systems allowing remote monitoring of work activities.
More specifically, the Inspectorate was asked if in these cases it is necessary to repeat the procedure with the trade unions or the authorization procedures or if instead it is enough that the occurred change of ownership be formally notified to the competent office of the Inspectorate.
Reference Regulations
Article 4 of the Workers’ Statute, which was amended in 2015, sets forth (par 1) that the audio-visual systems and other tools allowing remote control of workers’ activities, can be used exclusively for:
Moreover, even if the above conditions are met, it is necessary that:
The indications of the Inspectorate
The Inspectorate clarified that in the event of a mere “take-over” of a company’s facilities previously equipped with the aforementioned tools/systems, it not necessary to “replicate” the procedures (trade union agreement / administrative authorization) set forth in Article 4 of the Workers’ Statute. This is so provided that changes have not occurred with regard to (i) the requirements of legitimization (production and organizational needs, safety at work and protection of company assets) and (ii) the operational arrangements of the systems (framing, angles of coverage, etc.).
However, according to the Inspectorate, it is necessary that the company taking over the facilities:
In any case, the Inspectorate has clarified that any type of use of the devices other than the authorized uses is forbidden, under penalty of the obligation to repeat the described authorization procedures, just like in the event of a change of the requirements of legitimization.
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Remote control of workers: additional operating provisions from the Labour Inspectorate
On 12 August 2018, the conversion law No. 96/2018 of Decree Law No. 87/2018 (the so-called Dignity Decree) came into force, which, among other things, reintroduced the crime of fraudulent staff-leasing with Article 38 bis of Legislative Decree No. 81/2015.
Said offence – already provided for by the Biagi Law No. 276/2003 and then abrogated by the Jobs Act – occurs in all those cases in which “the provision of staff leasing is carried out with the specific goal of circumventing mandatory rules of law or collective bargaining agreement applied to the employee”.
The offence in question is punishable both for the client company and for the staff leasing agency with criminal penalties and a fine of 20 euros for each worker involved and for each day of staff leasing implemented.
In any case, the application of Article 18 of Legislative Decree No. 276/2003 remains unaffected, which punishes only the client company with an administrative fine of 50 euros for each worker employed and for each day of employment. The above fine cannot, in any case, be less than EUR 5,000 nor more than EUR 50,000..
That said, the National Labour Inspectorate (“INL”), with circular No. 3 dated 11 February 2019, reviewed the various cases in which fraudulent staff leasing may occur.
Unlawful Contract
The fraudulent staff leasing offence may take place, first of all, through the unlawful use of contract negotiations.
An unlawful contract occurs when the contract is entered into in the absence of the requirements established by Article 1655 of the Italian Civil Code, in order to circumvent mandatory legal or contractual provisions (see circular of the Ministry of Labour 5/2011).
In the event of such an offence, labour inspectors must adopt compulsory requirements against:
In addition, a formal notice with warning of inspection may be issued against the fraudulent client-user for the amounts accrued by the employees working under the contract for unpaid wage differences.
Other scenarios
According to INL, the offence of fraudulent staff leasing may also occur beyond the case of unlawful contracts. In particular, it may occur:
By way of example, INL identified as fraudulent staff leasing the case in which an employer dismisses one of its employees to reuse him/her through a staff-leasing agency, in breach of the law or collective agreement.
Penalties
In the event of unlawful contract and posting, as established in Article 38 bis of Legislative Decree No. 81/2015, the administrative penalty set out in Article 18 of Legislative Decree No. 276/2003 will apply and the inspectors will have to:
INL specifies that the administrative penalty referred to in Art. 18 is not subject to the warning procedure.
Where the inspectors identify a fraudulent purpose, it will also be possible to apply a warning of formal inspection.
If the fraudulent intent is identified in the case of staff leasing in compliance with the regulatory provisions, only the penalty referred to in Article 38 bis of Legislative Decree No. 81/2015 will apply, with the consequent adoption of the mandatory requirements and the warning notice of inspection against the client company.
Finally, even in the case of fake transnational posting, the penalty set out in Art. 38 bis of Legislative Decree No. 81/2015 will apply, insofar as the posting, as sometimes happens, is meant to circumvent the internal regulations and/or the collective agreement applied by the Italian client.
In particular, in order to constitute a breach of Article 38 bis, it is not sufficient to ascertain that the conduct led to the elusive application of the foreign social security system, but it is also necessary to ascertain the violation of the obligations of the employment terms set forth in Article 4 of Legislative Decree No. 136/2016.
Intertemporal regime
Legal literature and case-law agree in considering fraudulent staff leasing a permanent offence, considering that the behaviour is characterised by the intention to by-pass contractual or mandatory regulations and that it occurs when there is a perceivable level of continued unlawful actions.
According to the National Labour Inspectorate (INL), the permanent nature of the offence means that the breaking of the law lasts for the entire duration of fraudulent staff leasing, giving that it occurs at the time of termination of the illegal conduct.
Consequently, according to the principles set out in Article 1 of the Criminal Code (“no-one shall be punished for an act that is not expressly defined as a criminal offence by the law, nor with penalties which are not established by it”) and 2 (“no-one shall be punished for an act that, according to the law in force at the time in which it was committed, it did not constitute a criminal offence”) as well as per case-law trends, it must be deemed that, in the case of fraudulent staff leasing that started prior to 12 August 2018 and continued after that date, the offence referred to in Article 38 bis of Legislative Decree No. 81/2015 can only occur effective from 12 August 2018, with the consequent assessment of the related penalty only for the days following said date.
For the period prior to 12 August 2018, the exclusive application of the penalties set forth in Art. 18 of Legislative Decree No. 276/2003 remains in force.