During the posting period, posted workers must be guaranteed the same minimum conditions of employment as those for wage labour workers doing similar work in the posting location, as provided for by the legislative provisions and the collective labour agreements.
Collective labour agreements can be national, local, or company agreements. The national and local collective labour agreements are stipulated by the most representative trade union organizations at national and local level, while company collective agreements are stipulated by their company trade union representation or by single union representation (Article 51 of Legislative decree No 81/2015).
In particular, if the posting is in Italy then it is regulated by legislation, administrative recommendations and provisions of the collective labour agreements with specific regard to:
Maximum work periods and minimum rest periods: the provisions and the sanctions regime concerning working time and rest periods are provided for by Legislative decree No 66/2003. More specifically, according to Article 3 of the afore-mentioned decree, the standard number of working hours is 40 per week. However, the collective agreements provide more flexibility and establish maximum weekly working hours that may, in any case, not exceed 48 hours in any seven-day period, including overtime (Article 4, clauses 1 and 2 of Legislative decree No 66/2003). Workers are also entitled to 11 consecutive hours of daily rest every 24 hours (Article 7 of the above-mentioned decree) in addition to an uninterrupted weekly rest period of 24 hours every seven days, generally on Sundays. The above-mentioned uninterrupted weekly rest period is calculated within a period of 14 days and could fall on a week day (Article 9 of the afore-mentioned decree).
Minimum paid annual holiday: the provisions and the sanctions regime concerning working time and rest periods are provided for by Legislative decree No 66/2003. The worker is entitled to a minimum of 4 weeks of paid annual holiday. At least two weeks, except as provided for in the collective agreements, are to be taken during the year of accrual and can be taken consecutively if requested by the worker. The remaining two weeks are to taken during the 18-month period that follows the year of accrual. Payment cannot be taken in lieu of holiday unless employment has terminated (Article 10 of Legislative decree No 66/2003).
The holiday period is usually decided by the employer, based on company needs as well as the interests of the worker (Art. 2109 , 2nd clause of the civil code).
Minimum rates of pay (including overtime rates): In Italy there is no statutory minimum wage. Collectively agreed minimum wages are established in the national collective agreements for the different industrial sectors by the most representative trade union organizations at national level, in compliance with Article 36 of the Constitution which lays down the right to a fair wage, in proportion to the quality and quantity of the work.
Conditions applying to temporary workers: conditions of hiring out workers through temporary work agencies are provided for by Article 35 of the Legislative decree No 81/2015. For their entire working period, agency workers are entitled to at least the same pay and the same conditions for equal work as those who are employed directly by the "user" company. The "user" company is committed jointly with the temporary staff provider to pay the worker's salary as well as the relative social insurance contributions (Article 35 of the above-mentioned decree).
Health, Safety and Hygiene at work: The provisions and the sanctions regime concerning Health, Safety and Hygiene at work are provided for in Legislative decree No 81/2008. These provisions apply to all kinds of activities and risks (Article 3, Paragraph 1) as well as to all workers, employees or self-employed, and to whoever carries out his activity in the employer's organisation.
The requirements set down in the above-mentioned legislation concerning health, safety and hygiene at work go hand in hand with the provisions set down in the Posting Directive which have been implemented in Italy through Legislative decree No 136 of 17 July 2016.
More specifically, as regards the health and safety of posted workers, Article 3, Paragraph 6 of Legislative decree No 81/2008 establishes that:
Rules concerning the terms and conditions of employment of women who are pregnant or who have recently given birth, of children and of young people: Legislative decree No 151/2001 provides for maternity and paternity support and protection; the law of 17 October 1967, No 977 provides for the protection of child and adolescent workers.
Legislative decree No 151/2001 provides for the protection of the rights of working mothers. Its purpose is, on the one hand, to safeguard the health of the mother and the child and, on the other, to guarantee economic security during the period of absence from work. With reference to the period of pregnancy and the period immediately after the birth, the above-mentioned decree:
Equal treatment for men and women and other provisions on non-discrimination: Legislative decree No 198/2006, contained in the Equal Opportunities Code, provides for equality and non-discrimination for equal rights between men and women. Equal treatment must be guaranteed with regard to all aspects of employment, such as access to employment, promotion, training, employment conditions including remuneration and social benefits. The ban on wage discrimination is of particular importance and bans any form of discrimination, be it direct or indirect, concerning any aspect of the remuneration for the same job or for a job that is considered to be of the same worth (Article 28). This code introduced specific judicial protection against discrimination as well as compensation for possible damages.
In Italy, unlike many other European Countries, 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.
More specifically, in the present system the collective agreements are only binding for employers registered with the relative contracting trade union organizations. However, every employer, even if not registered, must guarantee his employees a fair wage in proportion to the quality and quantity of the work, as laid down in Article 36 of the Constitution. Italian jurisprudence interprets a sufficient and proportionate wage, as set forth in the constitutional law, as the one established by the trade union organizations in the collective labour agreement in the industrial sector of the employer. 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. It is these agreements that are taken into consideration by judges if a worker claims that his salary is neither sufficient nor in proportion to his work. As far as concerns social insurance contributions, Article 1, clause 1, of Bill 9/10/1989, No 338, enacted into Law No 389/1989, establishes that, if there is more than one applicable collective agreement in the same product sector, the wage on which to base the calculation of the social insurance contributions cannot be inferior to the wage established by the collective agreement stipulated by the most representative trade union organizations at national level.
From an analysis of the posting declarations, it emerged that the most common National Collective Agreements used for foreign posted workers are those of the construction, engineering and transport sectors, signed by the most representative trade union organizations in those sectors.
Click here to consult the minimum wages tables of the three afore-mentioned collective agreements.
The national collective agreements can be found at the following link: Archivio Nazionale dei contratti collettivi di lavoro del CNEL.
Posted workers currently working, or who have worked in Italy, can enforce their rights administratively or in court.
Unlawful situations can be notified to the local offices of the INL which will activate the necessary monitoring activities.
To find out which is the nearest to you, click here.
The General Directorate for the protection of employment conditions and industrial relations of the Ministry of Labour and Social Policies, within the framework of its powers and capabilities, attends to the aspects regarding the application of the regulations that discipline employment relationships, including the transnational posting of workers.
Notification of the posting must take place prior to the work starting and a dedicated helpdesk has been set up by the Ministry of Labour to assist users. Questions regarding the regulatory or technical aspects can be sent via URP online.
Furthermore, the local offices of the INL can provide information to foreign workers and companies regarding the legislation that regulates the transnational posting of workers as well as the necessary procedures to follow.
The purpose of the Observatory, provided for by Legislative decree No 136/2016, (the members of which are still to be confirmed) is to collect all the information linked to the transnational posting of workers in Italy, such as the number of workers involved, the duration of the postings and the main sectors and geographical areas involved.
The Observatory will be composed of:
The Ministerial decree of 10 August 2016 defines the operating standards and ways of transmission of Compulsory Communications. The annexes of the Decree are available in the section Documentation.
The e-form UNI_DISTACCO_UE must be sent by the service provider by midnight of the day preceding the start of the posting. Any subsequent variations must be transmitted within 5 days of the change being made. Cancellation is possible by midnight of the day preceding the start of the initial posting period. Information transmitted to the Ministry of Labour and Social Policies can be accessed through INL, INPS and through the Italian Institute for Insurance against Accidents at Work - INAIL (Istituto Nazionale per l'Assicurazione contro gli Infortuni sul Lavoro).
Circular No 3/2016 of the Italian National Labour Inspectorate (INL) specifies that as from 26 December 2016 all foreign service providers are required to notify the posting of workers in Italy via the Compulsory Communications procedure. Furthermore, by 26 January 2017 all postings that began after 22 July 2016 and that are still active on 26 January 2017 must be notified electronically.
As of 1 March 2017 a specific notification procedure has been set up for cabotage operations.
To send the e-form it is necessary to have 'company' access credentials for the Cliclavoro website.
Start the procedure.
Start the procedure for cabotage operations.
The Internal Market Information (IMI) System was set up with the aim to strengthen mutual administrative cooperation and assistance among Member States, as provided for by the Directive 2014/67/EU. It is an online cooperation tool provided free of charge that is used by competent authorities across Europe to facilitate the exchange of information among EU Countries regarding the transnational posting of workers.
IMI enables competent authorities (the designated competent authority in Italy is the INL and its local offices) in different countries, that are registered and authorized to operate on the System, to identify their counterparts in the other EU Countries and to exchange information rapidly and efficiently using pre-translated questions and answers, as well as machine translation for information entered in a free text box which is available in any of the official EU languages.
The purpose of these questions is to obtain the necessary information, on the company that is posting workers in other EU Countries, as well as on the posted workers themselves, which is needed to fulfil the inspection requirements of the requesting competent authority regarding the transnational posting of workers.
With the Directive 2014/67/EU, IMI will also be implemented via two new functions that concern the request for notification of any administrative measures or court orders and the request for recovery of a penalty and/or fine from the authorities of another Member State. Such functions can be used by the requesting authority exclusively when requesting documents concerning the breach of legislation regarding the transnational posting of workers.
Article 10 of the Legislative decree No 136/2016 establishes that foreign service providers posting to Italy must:
The ruling of 6 February 2018 states that, in the case of the transnational posting of workers, A1 certificates issued by the sending Member State can be disregarded if fraudulently obtained
As of 1° September 2017 it is mandatory for service providers posting workers to Finland to send an advanced declaration of posting
The two new FAQs further clarify the scope of application of Legislative decree No 136/2016 and explain what to do with the copy of the declaration