INFOFLASH LEGAL N. 1 NOVEMBER 2021

by LDP | Nov 15, 2021 | infoflash

The Tax Decree intervenes in the field of health and safety at work. Tightening of controls and sanctions.

 

In the Official Journal of 21 October 2021, decree-law no. 146 was published on “Urgent measures on economic and fiscal matters, to protect labour and for urgent needs” (also just “Tax Decree“).

 

The text, among other things, intervenes in the field of health and safety in the workplace by amending Article 14 “Measures of the supervisory bodies for combating irregular work and for the protection of the health and safety of workers” of Legislative Decree no. 81/2008 (better known as the Consolidated Law on Health and Safety at Work), in order to act more effectively on companies that do not comply with the prevention measures or that employ workers who do not comply with the law.

 

Below are the main aspects regulated by the new Article 14.

 

In particular, the Tax Decree affects the conditions for adopting the precautionary measure of suspension of the business activity affected by the violations:

  • 10%[1], and no longer 20%, of the irregular staff present in the workplace is sufficient (the suspension measure does not apply if the worker is the only one employed by the company);
  • no ‘recidivism’ is required as it is adopted immediately, in the face of serious breaches of prevention.

 

Following the ascertainment of the aforementioned violations:

  • the competent body may order the suspension in relation to the part (i) of the business activity concerned by the violations or, alternatively, (ii) of the work activity performed by the employees concerned by the violations[2];
  • the competent body may impose specific measures to put an end to the danger to the safety or health of the workers while at work;
  • it is not possible for the company to contract with the public administration for the entire period of suspension.

 

The National Labour Inspectorate adopts these measures through its own inspection staff immediately after the inspections have been carried out and, if reported by other administrations, within 7 days of receiving the relevant report.

 

Conditions for the revocation of the measure by the administration that adopted it:

  1. the regularisation of the workers;
  2. the verification of the re-establishment of regular working conditions in the case of violations of the rules on health and safety at work;
  3. the removal of the dangerous consequences of the violations in the hypotheses referred to in Annex I (the Annex lists the cases of violations for the purpose of the adoption of the measures, hereinafter also referred to as “Annex I” only);
  4. in the hypotheses of irregular employment, the payment of an additional sum equal to 2,500 euros up to 5 irregular workers and equal to 5,000 euros if more than 5 irregular workers are employed;
  5. in the cases referred to in Annex I, the payment of an additional sum equal to the amount indicated in the same Annex I with reference to each case.

 

The additional amounts referred to in letters d) and e) are doubled in the event that, in the five years preceding the adoption of the measure, the same company has been subject to a suspension measure.

 

On request, subject to compliance with the conditions set out in points a) to e), revocation is also granted subject to payment of 20% of the additional amount due. The remaining amount, increased by 5%, shall be paid within 6 months from the date of submission of the request for withdrawal. In the event of non-payment or partial payment of the residual amount within that period, the decision granting the application shall be enforceable for the unpaid amount.

 

Please note that this is without prejudice to the application of any other penal, civil and administrative sanctions in force.

 

Against the above-mentioned measures adopted for the employment of irregular workers (see Annex I), an appeal may be lodged, within 30 days, with the competent interregional labour inspectorate, which shall rule within 30 days from the notification of the appeal. If no appeal is lodged within 30 days, the appeal is deemed to be accepted.

 

Lastly, the provision states that the employer who does not comply with the suspension measure is punished with imprisonment of up to 6 months in the event of suspension for violations relating to the protection of health and safety at work and with imprisonment from 3 to 6 months or a fine from €2,500 to €6,400 in the event of suspension for irregular work.

 

LDP remains at your disposal for any further information or in-depth study of the topics discussed above.

 

 

 

[1] INL Circular no. 3 of November 9, 2021: “A first important change relates to the percentage of irregular workers that goes from 20% to the current 10%, whose condition is explicitly related to the absence of prior notice of establishment of the employment relationship. For the purposes of suspension, therefore, workers for whom no communication is required cannot be considered irregular, as is the case for family workers or partners, for whom only communication to INAIL is required pursuant to art. 23 of Presidential Decree no. 1124/1965. The new 10% percentage of irregular workers will continue to be calculated on the number of workers present in the workplace at the time of the inspection. It should be remembered that the workers to be counted in the calculation base are all those who fall within the broad notion of worker as per art. 2 of Legislative Decree no. 81/2008“.

[2] INL Circular no. 3 of November 9, 2021: “The suspension measure, as in the past, is first of all adopted “in relation to the part of the business activity affected by the violations“. With respect to this provision, reference should be made to the clarifications already provided by the Ministry of Employment and Social Policies, according to which “the effects of the measure should therefore be limited to the individual production unit, with respect to which the prerequisites for its adoption have been verified and, with particular reference to construction, to the activity carried out by the company in the individual work site” (see ML Circ. no. 33/2009; see also ML Prot. note no. 337 of January 9, 2021 in relation to trade fairs)”. […] “As in the past, it should be noted that the suspensive effects may begin, pursuant to paragraph 4 of the new art. 14, from twelve o’clock of the next working day or from the cessation of the work in progress that cannot be interrupted, unless situations of imminent danger or serious risk to the health of workers or third parties or public safety are found. Although the provision in this regard does not distinguish between the two causes of suspension (irregular work and serious violations regarding health and safety) it should be considered that, without prejudice to specific evaluations to be carried out on a case-by-case basis, the measure of suspension for health and safety reasons must, as a rule, be adopted with immediate effect“.

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