The expression "transnational posting of workers" refers to a situation in which an employer (home organisation), on economical purposes and under its direction, temporarily transfers one or more workers to another organisation (hosting organisation), so that they can carry out a service, which is agreed upon by the parties and governed by a contract between them.
In Italy, the posting of workers can take place:
- Between two different undertakings, both based in Italy;
- Across the Italian borders, i.e. the worker is sent in a workplace based in another UE country (transnational posting of workers).
In case of transnational posting of workers, it is worth noticing that on 1 January 2017 the Italian Legislative Decree no. 136/16 entered into force. The Decree is aimed at protecting the rights of workers living in Member States of the EU.
The provisions of the Decree apply to:
- Undertakings based in another European country, which have sent their workers to Italy, provided that during the posting time an employment relationship exists between the posted worker and the hosting organisation;
- Undertakings based in a non-European country, which have sent their workers to Italy (see Article 1(2) of the Italian Legislative Decree no. 136/16).
Among the other measures, the Decree sets forth that the posted workers shall be entitled to the same employment and working conditions as their colleagues working in the home organisation.
The same is true also in case of transnational employment.
Transnational posting of workers: guarantees provided to foreign workers posted to Italy
As regards transnational posting of workers, the above mentioned Decree is aimed at guaranteeing to all foreign workers posted to Italy the same minimum employment and working conditions as those granted to Italian workers who do the same job.
The service carried out by a foreign worker posted to Italy is regulated by Italian provisions of law, by administrative provisions, and by the clauses of the Italian collective bargaining.
More in detail, foreign workers posted to Italy are entitled to the following guarantees:
- Maximum work periods and minimum rest periods;
- Minimum duration of paid annual leave;
- Minimum wage treatments, including increased overtime wages;
- Conditions for hiring-out of workers;
- Safety, health, and hygiene at work;
- Protective measures regarding the employment and working conditions of pregnant women, new mothers, children and young people;
- Equal treatment between men and women and non-discrimination (see the above mentioned Legislative Decree no. 136/16).
Transnational posting of workers in Italy: how are posted workers remunerated?
As regards the remuneration oftransnationally posted workers, each employer is bound to guarantee to the employees a sufficient remuneration proportional to the quality and quantity of their work, as provided for in Article 36 of the Constitution of the Italian Republic.
According to Italian jurisprudence, the sufficient and proportioned remuneration is determined by the Italian Trade-Unions in the National Collective Bargaining Agreement relating to the category to which the employer belongs.
As regards income taxes, instead, in order to comply with insurance and social-security obligations, the general rule applies, that when different Collective Bargaining Agreements are in force in the same product market, the income tax basis on which to assess social-security and assistance contributions may not be lower than the amount determined in the Collective Bargaining Agreements, stipulated by the comparatively most representative Trade-Unions.
Transnational posting of workers: what is the IMI system?
In matters of transnational posting of workers, the acronym IMI, i.e. "Internal Market Information", refers to a software application, freely accessible by control authorities and aimed at facilitating the exchange of information regarding transnational posting of workers among the EU countries.
Indeed, the application allows the competent control authorities of each Member State – once they are registered and enabled – to communicate quickly and efficiently with their counterparts in other EU countries, by means of a standard series of pre-translated or automatically translated questions and answers.
The questions are aimed at acquiring information regarding either the workers, or the home organisation posting workers to other EU countries.
With the Directive 2014/67/EU, the system was functionally implemented. In particular, two new functions were activated, relating to cases of violation of the laws on transnational posting of workers, and namely:
- Request for notification of administrative or judicial acts;
- Request for recovery of administrative pecuniary sanctions to the authorities of another EU Member Country.
Latest news about transnational posting of workers in 2018: the Directive (EU)2018/957
The recently adopted Directive (EU) 2018/957, has introduced great innovations in matters of transnational posting of workers, extending its scope to include also staff leasing agencies posting their workers in another organisation located within the EU territory, as well as the road transport sector.
In short, the main novelties are:
- Ratification of the guarantees to posted workers, as they are described here above in paragraph 2;
- Extension of the scope of the laws of the country hosting the worker, including matters of accommodation, allowance or reimbursement of travel, accommodation, and subsistence expenses in case of business trips on behalf of the hosting organisation;
- Introduction of the concept of "remunerative transparency";
- Posting period reduction from 24 to 12 months, extendable to a maximum of 18 months.
The provisions of the Directive have not direct effect, since the EU Member States have to transpose them into national legislation by 30 June 2020.
Our Law Firm offers specific legal advice in the field of labour law, also providing support to foreign employers who wish to send their employees to Italy-based undertakings.
We help posted workers that are carrying or have carried out their service in Italy to enforce their rights through administrative and legal actions.
We provide tax and social-security assistance, as well as social-security representation services.
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.