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11 September 2019
The posting of employees from an EU country to Italy must comply with Legislative Decree 136/2016 (which transposes into national law EU Directive 2014/67/EU on the posting of employees in the framework of the provision of services) to avoid being challenged by the National Labour Inspectorate under the related penalty regime.
Legislative Decree 136/2016 applies to companies established in EU member states which, in the context of the provision of services, post to Italy one or more employees in favour of another company, including those belonging to the same group, another production unit or another recipient, on condition that during the posting, an employment relationship continues to exist with the posted employee.
The legislative decree provides a list of specific requirements and conditions (relating to both the form and substance of the posting and the activity to be performed), subject to verification by labour inspectors, on the basis of which the transnational posting of employees can be considered lawful under Italian law.
The legislative decree also requires that:
Should the posting be deemed irregular:
In the case of violations in the posting of employees from a company established in another EU country to its own production unit in Italy, the National Labour Inspectorate has specified (Note 5398 of 10 June 2019) that the production unit in question can be considered an autonomous secondary office (to which a pecuniary administrative penalty can be applied) only if it is registered in the register of companies and has its own legal representative in Italy.
A representative office with merely promotional and advertising functions or that conducts information gathering, scientific or market research or preparatory activity for the opening of an operational branch, cannot be considered an autonomous secondary office. In the latter case, if the local unit belongs to the same business organisation, the fines for illegal secondment will be applied only to the foreign posting company (the one with legal personality) rather than to both entities.
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