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The MOG 231 to the foreign posting test: a possible holistic view of corporate compliance

The MOG 231 to protect foreign postings with Studio A&P’s Travel Security Section

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Built on the indications of the A&P Posting Internet portal, the Special Section Travel security – Self-employed and employed work – intends to focus attention on the offences reviewed by articles 25 quinquies, 25 septies and 25 quinquiesdecies of Decree Law no. 231 of 8-6-2001, in the awareness that proper mitigation of the criminal risk, in the field of travel, can only be done through corporate provisions.

How the MOG 231 fits into corporate compliance

It is commonly said – and it is also true in law – that the only criminal defence for entrepreneurs and companies is the MOG 231.

But it remains silent that, in modern times, the corporate compliance archipelago consists of a series of islands:

  • work health and safety;
  • environment;
  • taxation;
  • certifications;
  • legality rating;
  • company rating;
  • privacy;
  • cybersecurity, etc.

in respect of which the MOG 231 – dynamic and pro-active tool for corporate growth – is increasingly unavoidable.

If it is not disputed, moreover, that the capital of said archipelago insist on the island called work health and safety – legal assets of primary importance being at stake here – it is equally not disputed that the inalienable duties of protection of corporate safety stakeholders stand out in the background even where human resources are posted.

According to settled legitimacy law, in fact,

«the foreign posting of the construction site is a irrelevant factor», given that, as it is placed to protect the physical integrity of the worker, «the Italian legislation on accidents […] must be considered of public order»

Crystalline consequences: however much human resources may be posted, the corporate safety stakeholder are in any case required to operate with diligence, skill and prudence (also pursuant to article 2087 of civil code. Cass. pen., sez. IV, 29-10-2003, no. 49492).

«will in any case be required to take all necessary measures to prevent possible accidents» [Cass. pen., sez. IV, 27-9-2021, no. 35510].

The same, in short, must in any case assess all the risk of the specific workplace and train workers specifically with regard to them [Cass. pen., sez. IV 27-6-2017, no. 45808].

If the above is correct, then it should come as no surprise that, taking note of the growing structural complexity inherent in corporate compliance, in literature, there have been who have intended to sponsor a «holistic view of business science», suggesting to build the MOG 231 of tomorrow also on the basis of «autonomous sections dedicated to single fragments of compliance» (Esposito, 2022: p. 155).

As a result, within the framework of our MOG 231, the Special Section Travel security – Self-employed and employed work was created. Constructed on the basis of the indications of the internet portal Posting A&P, said Special Section intends to focus attention on the offences reviewed by the;

  • articles 25 quinquies [offences against individual personality]
  • 25 septies [culpable homicide and serious or very serious injures committed in breach of the rules on the protection of work health and safety]
  • 25 quinquiesdecies [tax crimes] Decree Law. 8-6-2001, no. 231

In the awareness that a proper mitigation of criminal risk, in the field of travel, can only be done through corporate provisions, able, as such, to further prevent the commission, in the everyday corporate life, of these serious offences.

Hence the careful rhapsodic seam of ethical and organisational protocols and procedures – including corporate ones – which chatarcterises said Special Section and which also intends to mark the choice of field underlying it:

that of embracing, also in the field of travel, the culture of legality that must be proper to companies that really want to do sustainable business.

More specifically, documents emerge that are rooted in service built up from four steps, dealing with:

  1. Archives;
  2. Drafting analysis processes;
  3. Drafting application processes;
  4. Drafting corporate behavioural processes

designed to further strengthen the company’s business with specific regard to travel affaire.

Archive available for ongoing consultation

Having to track its activities [step I], thanks to this service, the company will be able to provide an archive that ensures the preservation and accessibility of the information entered therein (by the corporate figures to which the management will want to assign the corresponding write permissions).

Foreign posting training with specialised analysis

Having to assess the risk level ex ante [step II], thanks to this service, the company will be able to benefit from information (with specific regard also to terrorism activities, local customs and traditions, health services, natural disasters, endogenous and exogenous mobility, etc.) concerning the single areas within each individual Country of destination.

As a result, an objective assessment process based on a graduated scale built from four levels of hazard of reference scenarios.

Automated and shared application of security measures

Having to create a shared process between all security stakeholders [step III], thanks to this service, the company will ensure that they carry out automatic actions [which will also ensure that all actions to protect the individual liberty and physical integrity of the human resources engaged in posting are timely conducted].

Synergy between company managers and experienced lawyers to protect posted resources

Finally, having not only to train, but also to inform the posted human resources [step IV], thanks to this service, the company will be able to ensure that they have access to information on the actual effect of risk that emerges with specific regards to the single areas within each individual Country of destination [and this also thanks to the synergic work of the prevention and protection manager, employment lawyer, criminal lawyer, etc.].

A system, therefore, to mitigate risks, including criminal ones, for travel abroad

Thanks to this service, in short, the company will be able to effectively mitigate risks, even criminal ones, in the field of travel, taking conscious and informed decisions that lead, as such, to take correct actions also in terms of corporate regulatory.

In the awareness, which must increasingly be held by entrepreneurs and companies, that, in modern times, corporate compliance is and must be a patchwork called to transit through integrated organisational models (Esposito, 2022: p. 179).

In collaboration with:

Guido Sola, Attorney at law – SC Avvocati Associati, Modena – Italy

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