Reato di somministrazione fraudolenta: dall’appalto illecito al distacco transnazionale

In Circular No. 3 of 2019, the Italian National Labour Inspectorate provides some clarification regarding the elements of the offence of fraudulent staff leasing. This offence, reintroduced in our legal system by the so-called "Dignity Decree" (Italian Decree-Law No. 87/2018, converted into Law No. 96/2018), is committed when " staff leasing is carried out with the specific purpose of circumventing mandatory rules of law or provisions of a collective agreement applied to the worker" (Article 38-bis of Italian Legislative Decree No. 81/2015).

The Inspectorate includes within the scope of this statute, firstly, the case of the “pseudo-service contract”, which is a contract concluded in the absence of the requirements set out in Article 1655 of the Italian Civil Code (i.e. the organisation of the necessary means, the exercise of organisational and managerial powers and risk management by the service provider). In fact, the abuse of the contractual structure set out in the above-mentioned Article 1655 could allow an employer to save on labour costs and is itself symptomatic of a fraudulent purpose. That purpose is achieved by circumventing mandatory provisions of law or of applicable collective agreements, such as the those on the determination of taxable contributions (Article 1, paragraph 1, of Italian Decree-Law No. 338/1989) or prohibitions of staff leasing or those providing for certain requirements for the stipulation of the contract (Article 32 of Legislative Decree No. 81/2015) or establishing specific limits on staff leasing (Articles 31 and 33 of Legislative Decree No. 81/2015).

Secondly, the Inspectorate points out that the offence in question may also be committed in contexts other than unlawful service contracts. In fact, in case of use of employment agencies, fraudulent staff leasing is committed when an employer dismisses an employee to instead receive their services through an agency, in breach of laws or collective agreements. However, in this circumstance, stronger proof of the "specific purpose of circumventing mandatory rules" (provided for by Article 38-bis of Legislative Decree 81/2015) is required.

Similar considerations apply to cases involving the posting of workers, circumventing of the requirements set by Article 30 of Italian Legislative Decree No. 276/2003 –which include the interest of the posting party, the temporary nature of the posting and the performance of a specific work activity – or “inauthentic” transnational posting, as defined in Article 3 of Italian Legislative Decree No. 136/2016. The latter case may arise, for example, when the posting company, while operating in the market, limits its activity to the unauthorized supply of labour services only. In this case, in order to be punishable under the statute, the posting has to be instrumental to circumventing domestic laws and/or collective agreements applied by the Italian client.

Finally, Article 38-bis reinforces the administrative penalties set by Article 18 of Legislative Decree No. 276/2003, by providing that when the staff leasing is carried out with the specific purpose of circumventing mandatory laws or collective agreements, a fine of 20 euro, for each day of work by each employee involved, be applied to both the supplier and the beneficiary. In the case of an unlawful service contract, the labour inspectors must adopt the prescription aimed at ending the illegal conduct through the hiring of employees directly by the beneficiary for the entire duration of the contract.