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The EU Directive number 957/2018

In addition to the provisions concerning the principle of equal treatment for the posted workers, the EU Directive 2018/957 replaces the reference to the “minimum rates of pay” with “remuneration”, in its broader meaning including any individual constituent elements, in accordance with national law, regulation or administrative provisions, or set forth by applicable collective agreements.

The Directive, in fact, expands the list of remuneration elements providing for the application of the hosting Member State law (allowances or reimbursement of expenditure to cover travel, board and lodging expenses for workers where they are required to travel by their employer).

Furthermore, the Directive reinforces the concept of “transparency on remuneration” by providing that Member States shall publish the information on the terms and conditions of employment, without undue delay and in a transparent manner, on their single official national website, including the constituent elements of remuneration, in accordance with national law and/or practice, regulations or collective agreements in force in the host Member State.

Please note that the Directive, implemented in Italy by Legislative Decree no. 122/2020, improves the protection of the posted workers. Actually, where posting lasts for periods longer than 12 months host Member States should ensure that undertakings which post workers to their territory guarantee those workers an additional set of terms and conditions of employment that are mandatorily applicable to workers in the Member State where the work is carried out with the exception of procedures, formalities and conditions of the conclusion and termination of the employment contract, including non-competition clauses and supplementary occupational retirement pension schemes. The 12-month period shall be extended up to 18 months where the service provider submits a motivated notification.

Recital 14 of the Directive makes clear that these provisions should not prejudice the application of Regulations (EC) No. 883/2004 and (EC) No. 987/2009 of the European Parliament and of the Council on the coordination of social security systems. Therefore, the posted worker shall continue to be subject to the social security legislation of the Member State of his/her employer for the duration of the certificate A1 (24 months, renewable according to article 16 of the above-mentioned Regulation).

In the event that a posted worker is replaced by another posted worker performing the same task at the same place, the duration of the posting shall be the cumulative duration of the posting periods of the individual posted workers concerned.

Indeed, the Legislative Decree no. 122/2020 amended the existing discipline applicable to the posted workers in the framework of the transnational provision of services contained in the Legislative Decree no. 136/2016. The new rules entered into force on September 30, 2020.

The main changes concern:

  • The improvement of protection related to remuneration constituting elements, benefits and lodging allowances for the posted workers, with the aim of providing equal treatment compared to that applying to local workers in that Member State
  • Where a worker who has been hired out by a temporary agencyis to carry out work in the framework of the transnational provision of services by the user undertaking in the territory of a Member State other than where the worker normally works for the temporary agency, the worker shall be considered to be posted to the territory of that Member State by the temporary agency
  • The regulation of the long-term posting (where the effective duration of a posting exceeds 12 months, extendable to 18 months where the service provider submits a motivated notification); after this period of time, host Member States should ensure an additional set of terms and conditions of employment that are mandatorily applicable to workers in the Member State where the work is carried out by legal provisions or by collective should be applied to the posted workers.

Furthermore, in case of transnational provision of services, some specific information requirements have been introduced:

  • the user undertaking informs the temporary agency about the posted workers who are temporarily working in Italy for the temporary agency or for the user undertaking, in order to allow the employer to apply, as appropriate, the terms and conditions of employment that are more favourable to the posted worker (art. 10-bis, para. 1 of Legislative Decree no. 136/2016);
  • where the user undertaking sends the worker to supply services (in the framework of a transnational provision of services different from the temporary work) to a different company, the user company located in Italy must inform the temporary agency without any delay (art. 10-bis, para. 2);
  • in case the user company needs to post the workers to Italy, it must send a written communication to the temporary agency - to let it fulfil the notification obligations to the Ministry of Labour and Social Policies - containing: the number and the general information of the relevant workers; the dates of start and end of the transnational service supply; the place where the services will be supplied; the sector of the services (art. 10-bis, para. 3).