The EU Posted Workers’ Directive: focus on the recent implementation in Italy

By: Prof. Luca Calcaterra and Francesca Maffei (Università Suor Orsola Benincasa, Naples)

As it is known, the EU rules on posted workers (secondees) were revised in June 2018 and EU Member States had until 30 July 2020 to comply with the new rules. Those new rules expand on existing law to require that workers temporarily assigned to work in a foreign country must be given terms and conditions on a par with local workers in the host country.

For what Italian legislation is concerned, only on 15 September 2020, Italy implemented the revised Posted Workers Directive 2018/957 of 28 June 2018, with Legislative Decree no. 122/2020 which entered into force on 30 September 2020.

There are many significant changes in comparison to the previous legislation.

The most important novelty concerns the long-duration posting. After 12 months, posted workers are entitled to all mandatory Italian terms and conditions of employment set out by the law and by national and local collective bargaining agreements, with the following exceptions:

• • conclusion and termination of employment contracts;
  • non-compete covenants;
  • integrative social security.

The 12-month period may be extended to 18 months upon notification with reasons to the Ministry of Labour.

In addition to all the changes already described, the new Decree provides that if another posted worker performs the same task at the same place, the cumulative duration of the two postings periods will be considered for calculating the 12-month period.

If the posting total duration does not exceed the 12-month period, nevertheless, the list of terms and conditions of employment has been extended to include more guarantees. For instance, a reference to remuneration has replaced the one to minimum wage and a reference to annual paid leave has replaced the one to holidays. The new items include also adequate accommodation for posted employees (if the hosting employer provides for accommodation for employees posted away from their usually place of work), travel allowances or reimbursements (this includes travel, board and lodging expenses incurred by posted employees in Italy, both if they are required to go to their usual place of work or in the event that they are temporarily posted to a different location compared to the usual one in Italy or abroad).

Moreover, allowances specific to the posting are considered to be part of remuneration, provided that they are not paid to reimburse expenses actually incurred.  If it is not possible to determine the nature of the allowance, it is presumed to be paid as a reimbursement of expenses.

Another relevant modification has regarded the fact that the provisions of the company collective bargaining agreements no longer apply to posted employees.

Finally, the scope of application of the rules on posted employees has been extended to the case where a temporary placement agency supplies workers to a user company, who then send the workers in another European Union Member State. In this case the temporary agency will be considered to be the posting company and the user company must inform the temporary placement agency that it has sent the workers to another company based in a different Member State.