• Posting Workers

Occupational health and safety protection: the new provisions introduced by Legislative Decree 146 of 2021

The Government reorganises and extends the competences of the Labour Inspectorate from only construction sites or individual production units to all sectors of activity.

With Decree-Law No. 146 of 21 October 2021, the Government reorganises and expands the control and supervision systems, extending the competences of the Labour Inspectorate from only construction sites or individual production units to all sectors of activity (new Article 13 of Legislative Decree No. 81/2008 as amended by Article 13 of Decree-Law 146/2021).

In addition, the provision for the suspension of individual hazardous business activities for health and safety at work has also been reformed (new Article 14 of Legislative Decree no. 81/2008).

Sanction System Tightened

The INL Memorandums No. 3 and 4 clarify the most important provisions introduced, namely the ‘Tightening of the sanctions system‘.

In the event of serious violations concerning the protection of workers’ health and safety as well as in the event of the use of irregular labour, the immediate suspension of the undertaking’s activity is provided for. This suspension may be waived until 12 noon on the following day at the latest, only if there is no imminent danger (in order to allow the normal cessation of ongoing work).

The Decree also lowered the percentage of irregular workers that would allow the inspectorate to adopt the suspension measure from 20% to 10%. The percentage is calculated on the number of workers present at the time of the inspection. It should be noted that the suspension only concerns the production unit affected by the infringement and not the whole company.

 

For the entire period of suspension, the company is prohibited from contracting with the Public Administration.

Suspension Measures

The suspension measure is taken whenever serious violations of workers’ health and safety are detected:

  1. Failure to draw up a risk assessment document
  2. Failure to draw up an emergency and evacuation plan
  3. Failure to provide education and training
  4. Failure to set up the prevention and protection service and to appoint the relevant manager
  5. Failure to draw up the operational safety plan (OSP)
  6. Failure to provide personal protective equipment against falls from a height
  7. Lack of protection against the void
  8. Failure to install framerworks, subject to the requirements indicated in the soil consistency report
  9. Work in the vicinity of power lines in the absence of appropriate organisational and procedural provisions to protect workers from the resulting risks
  10. Presence of live bare conductors in the absence of appropriate organisational and procedural provisions to protect workers from the resulting risks
  11. Lack of protection against direct and indirect contacts (earthing system, autromatic circuit breaker, earth leakage circuit breaker)
  12. Failure to supervise the removal or modification of safety, signalling or control devices
 

Withdrawal of the suspension measure

For the withdrawal of the suspension measure, in addition to the regularisation of non-compliance, the payment of a sanction of variable amount is required, the amount of which is doubled in case of recidivism with respect to the previous five-year period. An appeal is only possible in cases of irregular work and must be submitted within 30 days of the inspection. Failure to comply with the suspension results in imprisonment from 3 to 6 months ( which can be converted into a fine in the case of illegal work).

Extension of the coordinating jurisdiction of the National Labour Inspectorate

Like the AA.SS.LL., labour inspectors are given the power to carry out surveillance and detection of possible offences in the field of prevention irrespective of the sector of intervention.

Strengthening of the INAIL database

Coordination between prevention bodies, supervisory bodies and AA.SS.LL. is improved in order to allow a more efficient monitoring of accidents at work.

The impact that these measures will have, together with the latest news on transnational posting, both for Italian companies receiving posted workers from abroad and for posting foreign companies, should not be underestimated.


 

For further assistance, please do not hesitate to contact Studio A&P at euposting@arlettipartners.com

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