Thanks to Giulia Conforto for collaborating on this article
With Law no. 215 of December 17, 2021, converting Law Decree no. 146 of October 21, 2021 (known as the “Fiscal Decree”)—in force since December 21, 2021—the Italian government introduced an amendment to Legislative Decree no. 81/2008 (known as the “Consolidated text on health and safety at work”) providing the obligation of a new prior reporting duty in order to “carry out monitoring activities and to fight forms of evasion” in the employment of occasional self-employed workers.
Recently, on January 11, 2022, the National Labor Inspectorate (INL) issued Notice no. 29/2022[1] containing the first set of instructions for proper fulfillment of the above obligation.
Terms and deadline of the advance communication
Section 14, paragraph 1 of Legislative Decree no. 81/2008—as amended by the Fiscal Decree—provides that the start of the activity of occasional self-employed workers shall be subject to prior reporting by the principal to the competent Territorial Labor Inspectorate—i.e., the inspectorate for the place where the work is to be performed—via text message or email, in order to allow the institution to monitor and counteract forms of evasion in the use of this type of contract.
As for the timing, in its Notice the INL specified that principals have until January 18, 2022 to communicate the start of occasional work begun since December 21, 2021 and already terminated, as well as any arrangements undertaken since January 11, 2022. For relationships entered into on or after January 12, 2022, such communication must be made before the occasional self-employed worker begins performing the service based on the letter of engagement.
Scope of application
The INL has noted that the new reporting obligation will affect only principals operating as entrepreneurs.
In addition, the provision concerns occasional self-employed workers, i.e., workers who fall within the scope of the definition set out in Section 2222 of the Italian Civil Code, which refers to an individual who “undertakes to carry out a work or a service for a compensation, mainly with his/her own work and without being subordinate to the Principal” and due to the occasional nature of the activity subject to the tax regime pursuant to art. 67, paragraph 1 lett. l) of Presidential Decree no. 917/1986.
Notably, among the workers excluded from the application of the aforementioned prior communication in addition to employees, there are also work relationships “intermediated by digital platforms, including self-employment activities not habitually exercised.” [2]
Modalities of communication and content
According to the provision under examination, mandatory reporting shall be made by text message or email, and in any event using the operating methods set out in Section 15 of Legislative Decree no. 81/2015, already in use in relation to intermittent employment relationships.
In compliance with these methods, therefore, the Ministry of Labor and Social Policies will take steps to update/integrate the applications in use, in order to simplify fulfillment.
The INL has clarified that, while awaiting the updating of procedures, however, the communication shall be made by sending an email to a specific email address made available by each territorial Inspectorate. Since this is an ordinary email address, principals shall retain copies of the communications to exhibit when needed.
The communication should contain:
- information identifying the principal and the worker;
- place of the performance;
- brief description of the activity;
- date of beginning of the activity and presumable time period within which the work or the service can be considered completed (e.g., one day, one week, one month). In the event that the work or service is not completed within the indicated timeframe, a new communication will be required;
- amount of remuneration, if set at the time of engagement.
Administrative sanctions
This new provision also states that, in the event of failure to send or delay in sending the communication, principals shall be punished with an administrative sanction ranging from EUR 500 to 2,500 in relation to each occasional self-employed worker for whom prior communication was not sent or was delayed.
Therefore, there may be multiple sanctions if the reporting requirements are not met in relation to multiple workers, and sanctions may also apply if the employment relationship extends beyond the period initially indicated in the communication without a new communication being submitted.
Work intermediated by digital platforms: A different regime for mandatory communication
As mentioned above, in the case of occasional work intermediated by digital platforms, Law no. 233/2021, converting Law Decree no. 152/2021, introduced special regulations regarding reporting obligations, establishing, among other things, that such reporting “is carried out by the principal within the twentieth day of the month following the beginning of the work relationship.”
Therefore—contrary to what is envisaged by the legislature in other cases of mandatory reporting (typically to be carried out by midnight of the day prior to the day on which the work relationship is established)—this is a communication subsequent to the beginning of the work relationship.
The methods for transmitting this type of communication will be established by decree of the Ministry of Labor and Social Policies, and those methods are expected to be published in the coming weeks.
[1] The Notice is available at the following link: https://www.ispettorato.gov.it/it-it/orientamentiispettivi/Documents/Nota-prot-n-29-dell-11-gennaio-2022.pdf.
[2] As well as (i) coordinated and ongoing collaboration, including hereto organized ones, pursuant to art. 2, paragraph 1, of Legislative Decree no. 81/2015, already subject to prior notification pursuant to art. 9-bis of Law Decree no. 510/1996 (converted by Law no. 608/1996); (ii) relationships established pursuant to and in the forms of art. 54-bis of Law Decree no. 50/2017 with respect to which specific communication and relationship management obligations are already envisaged; (iii) positions in intellectual professions, as they are subject to the specific regulation contained in article 2229 of the Italian Civil Code; (iv) and, in general, all autonomous activities exercised in a habitual manner and subject to the VAT system.
