Notification 2 of October 19, 2021 of the National Labour Inspectorate (Annex 1) clarifies the case of the chain posting introduced by Legislative Decree 122/2020, which amended Legislative Decree 136/2016. In particular, article 1 paragraph 2-bis introduced by the amendment contemplates the case of chain posting (vs. “double posting”), divided into two cases from the point of view of the Italian company: entry and exit chain posting.
The main point in common between these two cases is that the workers involved in multiple secondments are considered posted by the administration agency, which, as an employer, remains responsible for the economic and regulatory treatment and for the formal obligations that arise within posting of workers. In addition, the amendment introduced article 10-bis relating to the disclosure obligations of the parties involved in the chain posting. Finally, the amendment intervened on Article 12, introducing a sanctioning regime for the violation of the aforementioned obligations relating to chain posting.
Entry chain posting: details and obligations of the parties involved
Inbound chain posting states that an employment agency established in a Member State other than Italy will post, through the provision of manpower, one or more workers to a user company in the same Member State or in another Member State other than Italy (first link in the chain); the user company then in turn sends the workers to a company receiving the service in Italy (second link in the chain).
The prohibition of “double administration” stated in this case implies that the employment relationship that exists in the second link of the chain cannot be an administration as in the first link, but will consist of a transnational provision of services, such as a contract, subcontract o intra-group posting or at the branch of the user company in Italy.
Art. 10-bis, paragraph 3 states that the user company sending workers to Italy is obliged to notify the administration agency some information relating to the workers and the activity of the service, such as:
- number and general information of workers;
- start date;
- end date and duration of posting;
- place where the activities will be carried out;
- type of service provided.
The user company is also required to deliver to the receiving company in Italy a copy of the information translated into Italian and a copy of the relative transmission for the purposes of any checks by the authorities. In case of violation of the aforementioned obligations, art. 12, paragraph 3-ter also provides for an administrative sanction from €180 to €600 for each worker involved in the offence.
The obligations of the company receiving the service in Italy are amended in article 10-bis, paragraph 1: the company shall inform the agency posting workers about the working conditions and employment that apply to posted workers. It shall also keep a copy of the information sent and its transmission for the entire period of secondment and up to two years from its termination. Should the Italian company violate such obligation, administrative sanction from €500 to €1.500 for each worker involved in the offence may be applicable (Article 12, paragraph 3-bis).
Exit chain posting: obligations for the company in Italy
The exit chain posting is mentioned in the second sentence of Article 1, paragraph 2-bis introduced by the amendment of Legislative Decree 122/2020. This concerns the case in which the company based in Italy, receiving posted workers from the Agency in a EU Member State, posts in turn said workers to a third Member State, due to a commercial relationship, other than the supply of labor, eg. intra-group contract or posting.
In this case, the Italian user company is obliged to inform the agency of the secondment of workers to the recipient company “without delay” (Article 10-bis, paragraph 2). Violation of the aforementioned obligation entails an administrative sanction from €160 to €600 for each worker involved in the offense (Article 12, paragraph 3-ter).
Obligations for the Employment Agency
As an employer, the Employment Agency is responsible for the administrative obligation of communicating the secondment of posted workers within 24 hours of the day before the start of the service, through the use of the UNI Model – EU Posting available on the dedicated platform.
For the case of incoming chain secondment, the notification of the administration agency, in addition to the information referred to in letters a – i already present in article 10, paragraph 1 of Legislative Decree 136/2016, must also provide for the notification of the identification data of the user company that sends workers to Italy, as required by letter i-bis inserted in article 10, paragraph 1 of the aforementioned decree by the amendment of Legislative Decree 122/2020.
The violation of this obligation, pursuant to Article 12, paragraph 1, provides for a pecuniary administrative sanction from €150 to €500, for each worker involced in the offense.