The Italian National Labour Inspectorate (INL) with note no. 162 of 24 January 2023 clarifies on the possibility of proceeding with the suspension of business activities of a company that has only one undeclared employee on its workforce, in presence of a violation relating to the lack of the Risk Assessment document (“DVR”) and the appointment of the Head of the Prevention and Protection Service (“RSPP”).
Suspension measure in cases of undeclared employment
Legislative Decree no. 81 of 2008, also known as the Consolidated Law on Health and Safety at Work (TUSL), currently constitutes the main general regulatory reference in Italy for the protection of the individual and the organisation in the workplace.
Article 14 of the abovementioned Decree contains the provisions for combating irregular work and protecting the health and safety of workers. Pursuant to Article 14, paragraph 1 of the TUSL, the supervisory bodies of the Ministry of Labour may take measures to suspend a business activity if evidence is found of the employment of undeclared workers amounting to 20% or more of the total number of workers present in the workplace at the time of the inspection.
However, it should be noted that this percentage has in fact changed following the entry into force of Decree-Law No. 146 of 21 October 2021, from 20% to the current 10%. The new 10% percentage of irregular workers will continue to be calculated on the number of workers present at the workplace at the time of the inspection.
In addition, the suspension measure in cases of irregular work applies in cases of “repeated violations of the rules on exceeding working hours, daily and weekly rest […], considering the specific gravity of exposure to the risk of injury” (see Legislative Decree 81/2008, art. 14, paragraph 1).
Finally, the measure applies in the event of serious and repeated violations in the field of health and safety at work identified by decree of the Ministry of Labour and Social Security.
The revocation of the suspension measure by the supervisory body may take place following the ascertainment of the following cases:
- the regularisation of illegally employed workers;
- the verification of the re-establishment of regular working conditions (in cases of repeated breaches of the rules on exceeding working hours, daily and weekly rest periods, or serious and repeated breaches of the rules on health and safety at work).
Exceptions to the business activity suspension measure
Pursuant to Article 14 of the TUSL, as amended by Decree-Law No. 146 of 21 October 2021, it is provided that the business activity suspension measure is adopted in the event of the employment of undeclared workers amounting to 10 per cent or more of the total number of workers. It follows that the suspension measures “for cases of illegal employment do not apply in cases where the worker is the only one employed by the company”.
However, as also clarified in the Note 162/2023 of INL, this exception
whose ratio lies in the legislator’s desire to exclude the so-called micro-enterprises from the field of operation of the suspension measure, explicitly refers only to cases of employment of irregular workers.
On the other hand, the exception is not applicable in all the other cases of violations described in Annex 1 to Legislative Decree no. 81/2008, including violations that expose to risks of a general nature – i.e. the lack of the Risk Assessment Document or the appointment of the Head of the Prevention and Protection Service (RSPP).
The INL note 162/2023: Clarifications of the Italian National Labour Inspectorate
Therefore, the INL, with its note 162/2023, clarifies the modalities for the application of the suspension of business activities measure in respect of the so-called micro-enterprises.
In this very specific case, it concerned a company with only one undeclared employee in its workforce, where there was evidence of violations of prevention regulations, for failure to prepare the Risk Assessment Document and failure to appoint the RSPP.
On the one hand, the Inspectorate points out that the suspension of activities measures provided for are not applicable in the case where the worker is the only one employed by the company (Article 14, paragraph 4, Legislative Decree No. 81/2008).
On the other hand, the suspension of activities can be ordered for other types of violations, as in the case illustrated, for serious irregularities of a prevention nature, such as the lack of the Risk Assessment Document or the appointment of the RSPP.
Thus, these violations alone are sufficient to justify the adoption of the measure.