In Circular No. 1 of February 15th, 2023, the Italian National Labor Inspectorate (INL) provided clarification on “equivalent documentation”, which is subject to inspection during the supervision of transnational posting.
Obligation to store documents related to transnational positing
In Italy, the Law Decree No. 136/2016, implementing Directive 2014/67/EU on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services, introduced specific measures aimed at preventing and countering instances of inauthentic transnational postings, implemented by companies established in another member State or non-EU Country.
As stipulated in Article 10(3)(a) of the abovementioned Decree, one of the obligations imposed on companies posting personnel to Italy concerns the filing of documentation attesting to the authenticity of the posting, for the entire duration of the provision of services and up to two years after its termination, for exhibition to supervisory bodies.
Specifically, Article 10 of the abovementioned Decree introduced the obligation of document storage, which is the responsibility of the employer, stipulating that
“during the posting period and until two years after its termination, the posting company is required to: a) store, preparing a copy in the Italian language, (…) the public notice of the establishment of the employment relationship or equivalent documentation and the certificate on the applicable social security legislation”.
Clarification of INL circular 1/2023 regarding “equivalent documentation”
INL clarifies that “equivalent documents” has to be intended in general terms by the Italian legislator, having already valued the opportunity that other legal orders do not provide for a “public notice of the establishment of the employment relationship”, which is instead in the Italian law in order to combat the phenomenon of undeclared labor. Therefore, the circular clarifies that the expression “equivalent documentation” was intentionally used to allow the usability of any documentation in use in the member State, provided that such equivalent documentation was capable of attesting to the existence of the employment relationship in certain terms.
A1 Model as an equivalent document for the public notice of the establishment of the employment relationship
The INL Circular 1/2023 also clarifies that the document storage obligation for foreign companies posting workers to Italy can be discharged by retaining the attestation of the A1 Model application, submitted by the posting company to the social security authority of the home State.
In fact, although the issuance of the A1 Model can also take place after the start of the posting, resulting in retroactive effect, on the other hand, the request for the a1 Model certifies the worker’s registration with the social security system of the state where the posting company is based. Therefore, the attestation of the A1 Model application allows for elements of certainty regarding the date of commencement of the employment relationship in the state where the posting company is based as well as on the details of the contract.
The copy of the A1 Model application forwarded to the competent authorities of the state of establishment can therefore be considered as an equivalent document for the public notification of the establishment of the employment relationship and appears proportionate to the need to ensure effective supervision of compliance with the obligations under Directive 2014/67/EU and Directive 96/71/EEC.