The Italian National Labour Inspectorate (Ispettorato Nazionale del Lavoro, ‘INL’), with note no. 2401/2023, provided clarification on the retention of documents relating to transnational postings to simplify the administrative burdens on service providers who intend to post their staff to EU countries other than their country of origin.
Reference legislation
Transnational posting is governed by Italian Legislative Decree no. 136/2016, implementing Directive 2014/67/EU, and refers to cases where a company based in an EU Member State or in a non-EU State posts one or more workers to another Member State to another company.
A posted worker is therefore a person who, although he or she appears to be habitually employed in one Member State, carries out his or her work in another State for a limited period.
The legislation provides that, for the entire duration of the posting, the existing employment relationship between the posted worker and the posting company continues to exist. The work carried out in the other State is of limited duration and is carried out in the interest and on behalf of the posting company, which continues to be subject to the standard employer obligations (e.g. responsibilities in terms of recruitment, relationship management, salary and social security obligations, as well as disciplinary and dismissal powers).
Article 10 of Italian Legislative Decree no. 136/2016 provides for the obligation, on the part of posting employers, to communicate the posting in advance by means of the appropriate “UNI_Distacco_UE” form.
Paragraph 3 of the same article also contains two additional administrative burdens: first of all, the posting company must designate a contact person with address for service in Italy in charge of sending and receiving deeds and documents on its behalf. Otherwise, the registered office of the posting company will be considered as the place where the recipient of the provision of services has its registered office or resides.
The second burden requires that during the period of posting and up to two years from its termination, the employer must keep and prepare a copy in Italian of the employment contract or other document containing information on the employment relationship, pay slips, slips indicating the start, the end and duration of the daily working time, documentation proving the payment of wages or equivalent documents, the public notice of the establishment of the employment relationship or equivalent documentation and the certificate relating to the applicable social security legislation (“PD A1”).
With regard to this last aspect, the Labour Inspectorate clarified, with the note under discussion, that the foreign company that posts workers to Italy fulfils the obligation to keep the work documentation by simply showing it to the supervisory bodies if requested: without the need, therefore, to keep such documentation for the entire period of posting (as appears to be required by the legislative provision).
However, it should be clarified that it remains necessary to allow the inspection staff immediate access to check the correct establishment of the employment relationship which, as indicated in National Labour Inspectorate circular no. 1/2023, can be demonstrated through a certificate of the request for the posting document to the Social Security Authority of the Member State of origin made by the posting company.
In addition, the note clarified that the contact person designated by the posting company, in order to interact with the competent authorities, does not necessarily have to be physically present in Italy: an address for service in Italy will be sufficient together with reference contact details for service of documents or specific communications if necessary.