The Legislative Decree 15 September 2020, no. 122 has implemented the Directive 2018/957/EU. As already established by Decree no. 136/2016, the working and employment conditions of the host Member State also apply – if most favourable to the posted worker – to the employment relationship between the posted workers and the posting company.
However, if until September 2020 it was enough to adjust the worker’s minimum wage to the national wage – if any- with the national transposition of Directive 2018/957 in Italy it will be necessary to fully adjust the posted worker’s pay to that of an Italian worker of the same category by applying the most representative collective agreement.
The Italian law provides that there is joint liability between the commissioning party, its contractors and any subcontractors, meaning that they share the obligation to ensure fair treatment of the posted worker, that is salary, severance, social security contributions, insurance premiums for the period of posting.
The Italian transposition of EU Directive 67/2014 provides for several obligations for employers posting workers to Italy.
A posting notification must be sent via a dedicated official national website no later than midnight on the day before the start of the posting.
This official declaration must specify all the details of the assignment to be started, so that the inspection authorities are aware of them and can carry out their checks if necessary.
It is mandatory to appoint a contact person domiciled in Italy who is able to transmit the documentation required by the inspectorate and to communicate with the authorities.
The posting company must retain the posting documentation during the period of posting and until two years after its termination.
In addition, a copy in Italian language should be provided in case of inspection by the authorities.
Even though there are no limits to the mobility of non-EU workers, the Schengen Treaty still sets a limit of 90 days of residence in a 180-day period per year, provided that the worker has a national work permit in the European country of residence that has not expired.
However, EU countries may introduce different additional requirements for the exercise of working related activities of posted non- EU citizens. Before posting your employees to Italy, check whether they have an appropriate work permit.
A&P can support you in requesting the suitable permit from the competent bodies depending on nationality and type of posting.
It applies to workers hired by employers established abroad and directly paid by them, who are temporarily transferred from abroad to their Italian contractor, in order to carry out services in the frame of a contract between the two entities on Italian territory, provided that the worker has a regular work permit in his employer’s EU country of establishment (Art 27 letter L of Legislative Decree 286/1998).
It allows foreign nationals with regular CEE permit to enter Italy for a short stay if they intend to travel for business purposes.
Only workers who intend to perform certain activities are entitled to ask for this visa, that is economic-commercial purposes, for contacts, meetings or negotiations, for learning or verifying the use and operation of the capital goods and operation of capital goods bought or sold under commercial and industrial cooperation contracts. All other kinds of job activities are not eligible for the application for this kind of visa (Art 2 appendix A of Decree 12 July 2000).
In the case of assignments of more than 90 days, additional obligations will have to be observed. It is therefore recommended that you first check what type of residence permit the worker holds in the EU country where he or she resides.
Employees must be covered by social security also in case of short-term assignments. Generally speaking, the principle of territoriality applies.
Therefore, contributions should be paid in the country where the work is performed.
However, thanks to the A1 certificate the posted worker can prove that he remains insured for social security purposes in the EU country where the posting company is based.
When the employer is established in a non-EU country, bilateral agreements may apply.
The purpose of this regulation is to coordinate social security systems in the EU in order to enable the effective exercise of the right to free movement of persons provided for in the EC Treaty.
Community law imposes certain rules to ensure that the application of the different national systems does not adversely affect those exercising their right of free movement.
This means that not only inactive persons are protected by the coordination rules, but also employees, self-employed persons, civil servants, students and pensioners.
Italy has entered into bilateral social security conventions with several non-EU foreign states.
The Italian social security institute – INPS- provides for information about the individual agreements, their scope and requirements for aggregation and application procedures.
We support companies in finding out more about this topic.
After Brexit, the coordination between the EU and the UK social security is regulated by the PSSC, a protocol of the EU-UK TCA. The new framework is similar to the EU one, but there are a few differences and some aspects will be defined in the future.
A&P can support and provide you with the latest information on the issue.
Posted construction workers have to be registered and pay contribution to the competent Cassa Edile, their social security fund, since their working condition has to be adapted to the relevant national collective agreement as a result of national (D.Lgs. 17/07/2016 n.136) and EU (Directive 2014/67) rules.
This does not apply to workers from countries that have entered a Convention with Italy on the issue (Germany, France, Austria, San Marino).
Remuneration is usually taxable in the country of residence under three conditions: the employee has stayed in the other country for no more than 183 days of the tax year, he is paid by an employer who does not reside in that country, the remuneration is not paid from a permanent establishment or a fixed base that the employer has in the other country (e.g. Art. 15 of the Conventions with France, Germany, the UK).
The concept of permanent establishment is defined in the bilateral conventions on double taxation (e.g. Art. 5 of the Conventions between Italy and France, Germany, the UK ) and gives rise to tax and regulatory obligations for the company (tax returns, financial statements, accounting records).
One of the most relevant effects is the taxation of employment income of all workers deployed in the permanent establishment, even if they are employed abroad by contract.
The following cases fall in the category of permanent establishment:
The protection of workers’ health is regulated by Decree 81/2008, which transposes most European directives in the sector.
Foreign companies operating in Italy (EU and non-EU) must prove their suitability from a technical-professional point of view by submitting appropriate documentation before travelling.
Specific protocols are provided for activities carried out at construction sites (building, road, etc.).
Particular attention is paid to the risks of interference between the work of different companies.
Under D.Lgs. 81/2008, Art. 18, employers must provide health and safety training to all workers. If a worker is tasked with specific hazardous activities, he has to be specifically trained.
A&P can help you in verifying if your employees are dutifully trained for Italian law and, if necessary, organising training with certified agencies.
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