A] THE SECONDMENT DURATION
- According to Italian law, the maximum duration of the secondment is 12 months; the subject period may be extended up to 18 months on the basis of a due notification from the service provider in the presence of justified needs and under certain conditions.
- In case of extension beyond 12 months (and up to 18 months) in Italy, the seconded worker is also entitled to all the protections offered by the Italian labor law (as if the seconded worker was an employee hired by the company with the exception of the procedures and conditions for the conclusion and termination of the employment contract, non-competition clauses and supplementary occupational pension schemes).
B] PROCEDURE OF THE SECONDING COMPANY
The seconding company must:
- make a prior communication not later than h. 00 of the day before the start of the secondment. The subject mandatory communication must be transmitted using the UNI_DISTACCO_UE model. (The compilation of the telematic model UNI_DISTACCO_UE must contain the following information: identification data of the service provider/seconding company, generalities of the seconded workers, duration of the secondment, place of secondment, identification data of the seconding subject, specific type of services that justify the secondment, generalities and elected domicile of the contact person, generalities of the contact person);
- retain, by preparing a hard copy or electronic copy in Italian, the documentation regarding the employment (employment contract or other similar document), pay slips, slips indicating the beginning, end and duration of daily working hours, documentation proving payment of wages or other equivalent document, as well as the certificate relating to the applicable social security legislation (model A1) and the communication/public registration of the establishment of the employment relationship (for the entire period of the secondment and up to two years after its termination);
- designate a contact person electively domiciled in Italy responsible for sending and receiving deeds and documents. Failing this, the registered office of the seconding company is deemed to be the place where the recipient of the services is domiciled (for the entire period of secondment and up to two years from its termination);
- designate a person, not necessarily coinciding with the one mentioned above, to act as a legal representative, in order to put the concerned social partners in contact with the service provider for possible collective bargaining; this contact person is not obliged to be present at the place where the seconded work is carried out, but must make himself available in case of a reasoned request (throughout the period of secondment and up to two years after its termination).
C] OPERATIVE PROCEDURE TO BE FOLLOWED BY THE SECONDING COMPANY IN ORDER TO MAKE A COMPLIANT SECONDMENT OF THE WORKER IN ITALY
The seconding company must comply with the following operative procedure:
- Decide the beginning date of the secondment of the worker, in order to let the Italian payroll consultant of the seconding company to timely transmit the UNI DISTACCO UE model (please note that it is impossible to implement a retroactive secondment declaration and therefore a retroactive UNI DISTACCO UE model (see above paragraph B, point n. 1));
- Ask to its ‘home’ payroll consultant to obtain from the competent authorities the certificate of the seconded worker relating to the applicable social security legislation (model A1) and necessary for the secondment in Italy of the seconded worker;
- Ask to the Italian payroll consultant to fill in and submit the UNI DISTACCO UE model;
- In other words, in order to implement the subject procedure, the seconding company must ask for the assistance of its Dutch and Italian pay roll consultants and coordinate them.
D] THE RULES TO BE COMPLIED WITH DURING THE SECONDMENT OF THE SECONDED WORKER
- for the entire duration of the secondment, the employment relationship must continue to exist between the seconded worker and the foreign company;
- the seconding company continues to be responsible for the typical obligations of the employer, i.e. the responsibility for recruitment, management of the relationship, related salary and social security obligations, as well as disciplinary and dismissal powers.
In addition, during the secondment, the seconding company must guarantee to the seconded worker the following rights provided for by Italian law inclusive of the applicable National Collective Labor Contract (the Contratto Collettivo Nazionale di Lavoro: CCNL) that applies to the employees of the Italian secondee company (in Italian, “distaccatario”):
- Maximum work periods and minimum rest periods;
- Minimum duration of paid annual leave;
- Minimum wages, including overtime bonuses
- Health, safety and hygiene at work.
E] STORAGE OF DOCUMENTATION
During the secondment period and until 2 years after its termination, the seconding employer must keep, and make a copy into Italian language of:
- the employment agreement or any other document having similar content,
- the salary statement (in Italian, “prospetto paga”),
- the statements indicating beginning, end and duration of the daily work schedule,
- the documentation proving the payment of the salary,
- public communication of beginning of the employment relationship or similar documentation and
- the certificate related to the applicable social security law.
F] RISKS ARISING OUT OF LACK OF COMPLIANCE WITH SECONDMENT RULES
In case of inspection of the Labor Inspector which will result into non-compliance with the secondment procedure and rules, the job will be declared as an irregular secondment with the following consequences:
- the labor and welfare measures and protections provided by the Italian law will be applied to the seconded worker, attributing the labor relationship to the secondee company (in Italian “distaccatario”) starting from the beginning of the activity carried out as a “false secondment” with no-recognition of model A1;
- the administrative fine regarding the violation consisting of the lack of communication of the employment relationship will be applied to the secondee company;
- the seconding company (in Italian, “distaccante”) and the secondee company shall be punished with an administrative fine of € 50 for each worker employed and for each day of employment. In any case, the amount of the fine may not be less than € 5.000 or more than € 50.000.