Italy: Decree "Destination Italy" - News For Employers

1. INTRODUCTION

The Law Decree nr. 145 dated 23 December 2013, containing "Urgent measures to start the plan "Destination Italy", has been published on the Official Gazette nr. 300 dated December 23rd 2013. The measure is effective starting from January 23rd 2014 and is made of 15 articles. Among most interesting news for employers we'd like to highlight the following ones:

• Increase of 30% of the maxi-fine for irregular work and additional amounts in case of request of revocation of the injunction of interruption of the business
• Tenfold increase of some administrative fines for missed respect of days-off.

2. MEASURES AGAINST IRREGULAR WORK

Article 14, paragraph 1, letter a) of the Decree "Destination Italy" states a 30% increase of the administrative fines foreseen in case of irregular workers (under article 3 of the Law Decree 12/2002, converted with modifications into the Law 73/2002).

With regards to the administrative fines mentioned, the same article 14 now excludes the procedure of cease-and-desist order set by article 13 of the Legislative Decree nr. 124/2004 admitted before. In substance, the rule now excludes for the lawbreaker the chance to:

• Regularize the period of irregular work after the cease-and-desist order issued by employment authority's personnel;
• Being allowed to pay an amount equal to the minimum administrative fine set by the law between a minimum and a maximum and a fourth of the increase set in a fixed amount.

Here below we summarize the applicable administrative fines in case of employment of irregular workers (without pre-emptive communication of the starting date of employment by the private employer) up to December 23rd 2013 and from December 24th 2013.

After the enforcement of the Decree "Destination Italy", the Ministry of Employment, in its letter nr. 22277 dated December 27th 2013, has given the first clarification on modifications to the punishing regimen for irregular workers.

In particular, the Ministry has specified that, with relation to the employment of "black workers" before December 23rd, violations will be subject to the previous discipline. In other terms, for those violations:

• Not increased fines will be applicable;
• The employer will be allowed to ask the cease-and-desist order procedure under article 13 of the Legislative Decree 124/2004.

This independently from the date of ascertainment of the violation and/or the notification of the order. On the contrary, with relation to violations made starting from December 24th 2013, the Ministry, within the same letter mentioned above, invites the auditors to delay notifications of the orders after the conversion into law of the Decree "Destination Italy" in order to apply increased fines.

Interruption of the business

Article 14, paragraph 1, letter a) of the Decree "Destination Italy" sets also a 30% increase of the additional amounts to be paid to repeal the measure of interruption of the business, that is normally applied in these cases, if the auditors of the Ministry identify irregular workers for more then the 20% of employed workers in the same place of work nevertheless in case of severe and repeated violations of rules set for safety and health in working places.

These are the additional amounts that the employer has to pay to make the interruption of the business revoked.

Here below we summarize the amounts of those additional amounts to be paid up to December 23rd and from December 24th 2013.

Following the modifications enforced by the Decree "Destination Italy", starting from December 24th 2013, the repeal of the interruption of the business is subordinated to:

• in case of irregular workers
  
  
  • The regularization of the same (under art. 14, paragraph 4, lett. a), of the Legislative Decree n. 81/2008) and
  • The payment of the additional amount of Euro 1.950,00 (under art. 14, paragraph 4, lett. c), of the same Decree);
• In case of irregular workers and severe and repeated violations of safety and healthcare protection measures and laws at the same time
  
  
  • The restoration of regular work conditions (under art. 14, paragraph 4, lett. b), of the Legislative Decree n. 81/2008) and The payment of the additional amount of Euro 3.250,00 (under art. 14, paragraph 4, lett. c), of the same Decree).

To this extent, the Ministry of Employment, with Letter nr. 22277/2013, has clarified that being these additional amounts to be paid (and not penalties), they have to be applied under the request of repeal of the interruption of the business issued starting from December 23rd 2013, even if referred to behaviours taken before that date.

3. WORKING HOURS

Some administrative fines have been increased up to ten folds.

They are the ones related to:

• The maximum average endurance of the working period (art. 4, paragraph 2, Lgs. decree n. 66/2003) that can't in any case exceed, for every 7-days period, 48 working hours, including overwork hours;
• The discipline of weekly break under which the employee is entitled to a break of at least 24 consecutive hours every 7 days, (art. 9, paragraph 1, Lgs. decree n. 66/2003) normally on Sundays, to be added to the daily break. The wikly break is calculated as the average of period not exceeding 14 days;
• The discipline of daily break under which the employee is entitled to 11 consecutive hours break every 24 hours (art. 7, paragraph 1, Lgs. decree n. 66/2003) .

The violation of the above mentioned rules, implies the application of administrative fines increasingly scaled according to the seriousness of the violation itself.

In particular, up to December 23rd 2013, for the violation of the average maximum endurance of the working period and of the discipline of weekly breaks, the administrative fines were set as below:

• From 100,00 to 750,00 Euro for violations regarding a maximum of 5 employees or occurred in a maximum of 2 working periods;
• From 400,00 to 1.500,00 Euro for violations regarding a maximum of 5 employees or occurred in a maximum of 3 working periods;
• From 1.000,00 to 5.000,00 Euro for violations regarding a maximum of 10 employees or occurred in a maximum of 5 working periods

While violations regarding the daily breaks, the administrative fines were set as below:

• From 50,00 to 150,00 Euro for violations regarding a maximum of 5 employees or occurred in at least 1 period of 24 hours;
• From 300,00 to 1.000,00 Euro for violations regarding more than 5 employees or occurred in at least 3 periods of 24 hours;
• From 900,00 to 1.500,00 Euro for violations regarding more than 5 employees or occurred in at least 5 period of 24 hours;

WARNING !

Starting from December 24th 2013, following the enforcement of the Decree "Destination Italy", the above mentioned amounts have been tenfold increased.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.