Note 606 of the INL of April 15, 2021 confirms that the cumulation of penalties does not apply to fines.
On April 15, 2021, the Central Legal Coordination Directorate of the Ispettorato Nazionale del Lavoro excluded the application of the cumulation of penalties on the basis of Article 8 of Law 689/1981 to the fines pursuant to Article 1, par. 913 of Law 205/2017, clarifying with Note No. 606 the issue.
Article 1, par. 913 of Law 205/2017 imposes fines ranging from €1,000 to €5,000 to employers who do not pay workers’ wages through the traceable instruments listed in par. 910 of the same article. The unlawful act occurs “every time remuneration is paid in violation” of the rule, therefore generally for every month of violation, and “regardless of the number of workers affected by the violation” – the INL had already clarified these aspects in Note No. 5828 and 9294 of 2018.
The issue of the application of the cumulation of penalties under Article 8 of Law 689/1981 (Decriminalisation Law) was still open to interpretation. The cumulation imposes, for those who would be subject to more than one administrative sanction, only a single sanction – the most severe among those providable, increased up to three times. The provision in question has two prerequisites for the application of the cumulation of penalties: in par. 1, the violation of several provisions or multiple violations of the same provision with a single act or omission; in par. 2, the violation of several rules or multiple violations of the same provision “in matters of mandatory social security and assistance” also with several acts or omissions. In particular, it could have been argued that the second paragraph was applicable in the event that the so-called “maxisanzione” was also paid for the employment of illegal workers, i.e. in breach of social security rules.
Clarifications of the INL
The INL clarified that par. 1 is not applicable since, as it had already explained, a separate unlawful act occurs for each monthly payment not paid through traceable means. Par. 2 is not applicable either, since the violation occurs “irrespective of any violations of social security and mandatory assistance”, therefore also irrespective of the possible employment of “illegal” workers and of the consequent payment of the “maxisanzione”. The analogical application of Article 81 of the Criminal Code is also excluded, given the fundamental difference between administrative offence and criminal offence.
Conclusions: sanctions to be applied per number of months
To sum up, an employer who violates the provisions on traceable payments cannot avail himself of the cumulation of penalties and will be sanctioned as many times as the number of months for which he has unlawfully paid remuneration, regardless of the number of employees involved.
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