Report on the situation of male and female personnel for companies with over 50 employees
We inform you that Interministerial Decree No. 326 of June 3, 2024, has been published in the legal advertising section of the Ministry of Labor website https://www.lavoro.gov.it. This decree, in implementation of Article 46 of Legislative Decree 11 April 2006, No. 198, defines the modalities for drafting the report on the situation of male and female personnel by public and private companies with more than 50 employees.
Companies with their registered office abroad are required to submit the report only if they have one or more branches, subsidiaries, or production units in Italy that collectively employ more than 50 employees. In such cases, a single report must be submitted, providing information on all employees at branches, subsidiaries, or production units located in Italy.
Pursuant to Article 46, paragraph 1-bis, of Legislative Decree 198/2006, public and private companies with up to fifty employees may voluntarily draft the report referred to in paragraph 1 using the same telematic modalities defined in this decree.
The report must highlight the number of male and female workers, distinguished by gender, professional category, level of classification, and type of contract:
- Hired during the reference year;
- Involved in professional training activities and the total hours dedicated to such activities;
- Affected by changes in category, qualification, or level, or other mobility phenomena;
- Whose individual employment contract has been converted from fixed-term to permanent or from part-time to full-time (and vice versa);
- Involved in social shock absorbers;
- Subjected to collective or individual dismissal procedures;
- Involved in pre-retirement and retirement procedures.
The employer must also report additional information regarding the total remuneration paid to male and female workers (detailing the wage components) and the number of pregnant female workers.
Submission Modalities
Companies must prepare the report on the situation of male and female personnel exclusively online, by completing the online form attached to D.I. 326/2024. To this end, a specific IT application is made available on the Ministry of Labor and Social Policies portal at https://servizi.lavoro.gov.it.
By selecting the biennium 2022/2023, it is possible to choose whether to manually enter/complete a new report (via the “Fill” button) or upload a previously completed Excel model (via the “Pre-fill from Excel” button). The Excel model can be downloaded from the main screen of the application.
For the 2022/2023 year, as an alternative to creating a new report or uploading via the Excel model, it is possible to update the report already available in the System from the previous biennium.
To access the application, companies use exclusively the Public System of Digital Identity (SPID) or the Electronic Identity Card (CIE) of the legal representative or another authorized person, or other authentication systems provided by the Ministry of Labor and Social Policies. The data provided for drafting the report must not indicate the identity of the worker, specifying only the gender so that the reported data does not directly or indirectly identify the individuals.
Upon completion of the form filling process, the Ministry of Labor and Social Policies’ IT application, if no errors or inconsistencies are detected, issues a receipt certifying the correct preparation of the report and its saving in the system.
The regional equality advisor will be given a unique identifier to access the data contained in the reports submitted by companies with their registered office in the territory of competence to process the results and transmit them to the local offices of the National Labor Inspectorate, the national equality advisor, the Ministry of Labor and Social Policies, the Department for Equal Opportunities of the Prime Minister’s Office, the National Institute of Statistics, and the National Council for Economy and Labor.
The preparation of the report and its saving in the system is equivalent to transmitting the report to the regional equality advisor. A copy of the report, along with the receipt, must also be electronically transmitted by the employer to the company union representatives by the same deadline of July 15, 2024.
A copy of the report must be made available by the equality advisor or the company union representatives to any worker who requests it to avail of judicial protection provided by the same Legislative Decree 11 April 2006, No. 198.
If, upon examining the biennial report, the regional equality advisors deem it necessary, they may request further information from the employer and relevant entities, through the Territorial Labor Inspectorates if necessary, to ascertain any discrimination.
Deadline for Submitting the Biennial Report
In the initial application phase of the new modalities adopted with this decree, limited to the biennium 2022-2023, the deadline for submitting the biennial report is set for September 20, 2024. For subsequent years, the submission deadline is confirmed as April 30 of the year following the end of each biennium.
Sanctions for unauthorized provision, illegal contracting, and illegal posting
Decree Law 19/2024, as converted by Law 56/2024, has introduced significant changes to Article 18 of Legislative Decree 276/2003, which governs the sanctioning regime regarding unauthorized provision, illegal contracting, and illegal posting.
With note No. 1091/2024, the National Labor Inspectorate (INL) has provided initial guidelines on the correct application of the new provisions, reserving the right to provide further guidance on the transitional regime of the new sanctioning regulations.
It is noted that the new sanctioning framework, even in light of the INL’s interpretation, is particularly severe.
Amount of Fines
The criminal relevance of the offenses sanctioned by Article 18 of Legislative Decree 276/2003 has been reinstated, introducing the penalty – alternative or combined – of arrest or fine. For the correct determination of the fines, it is necessary to consider Article 1, paragraph 445, letter d), No. 1, Law 145/2018, which was only partially modified by Decree Law 19/2024 – with an increase from 20% to 30% of the amounts of the so-called maxi-sanction for undeclared work – thus confirming the application of the 20% increase already provided for the cases under Article 18 of Legislative Decree 276/2003. Consequently, this increase will also apply to the new fines provided for by Decree Law 19/2024, as detailed in the table attached to the INL note.
Moreover, since, except for the case of profit-driven intermediation activities carried out by unauthorized persons, the penalty of arrest is alternative to the fine, the inspection personnel must preliminarily proceed with mandatory prescription.
The final quantification of the fine must also consider that the amount of pecuniary penalties cannot be less than €5,000 nor more than €50,000, and these minimum and maximum limits will apply to offenses of unauthorized and fraudulent provision, as well as illegal contracting and posting. Therefore, for offenses punished with a proportional fixed penalty where, based on the number of days of illegal provision, the amount to be imposed concretely is less than €5,000, this threshold will apply, which, following compliance with the prescription issued, will be reduced to a quarter and thus equal to €1,250.
Recidivism Regime
Regarding recidivism for violations of the new Article 18 of Legislative Decree 276/2003, there is a partial overlap of different legislative provisions (Article 1, paragraph 445, letter e), Law 145/2018, which states, “the increases are doubled if, in the previous three years, the employer has been subject to administrative or criminal sanctions for the same offenses” and the new paragraph 5-quater of Article 18, which states, “the amounts of the fines provided for in this article are increased by twenty percent if, in the previous three years, the employer has been subject to criminal sanctions for the same offenses”), and the INL believes that:
- The increase under Law 145/2018 applies if the employer, in the previous 3 years, has been subject to any administrative or criminal sanction, constituting, essentially, a “simple” recidivism, even for violations other than those of Article 18;
- The increase in the fine provided for by paragraph 5-quater of the new Article 18, in addition to the increases indicated by Law 145/2018, applies in the case of “specific” recidivism, that is, referring to one of the conducts already sanctioned under the same Article 18.
This mechanism applies to all sanctioning hypotheses provided for in Article 18, including the new aggravating circumstance under paragraph 5-ter for cases where labor provision is carried out with the specific aim of evading mandatory legal or collective contract provisions applied to the worker and that, even in cases of recidivism for hypotheses punished with proportional pecuniary penalties, the minimum and maximum limits provided for by paragraph 5-quinquies must be considered.
Aggravating Circumstances for Exploitation of Minors
The adjustment of almost all sanctions of Article 18 of Legislative Decree 276/2003 in a criminal key, with a provision for all basic hypotheses of the penalty of arrest as an alternative to the original fine (except for profit-driven intermediation activities), requires necessary coordination with the aggravating circumstances in case of exploitation of minors. These aggravating circumstances, not modified by Decree Law 19/2024, expressly provide that, if there is exploitation of minors, the penalty is arrest up to 18 months, and the fine is increased up to sixfold.
The aggravating circumstances for the exploitation of minors are limited to increasing the two types of sanctions without, however, changing their alternative nature. Therefore, except for the case of unauthorized intermediation activities with profit, even in the presence of the aggravating circumstance for the exploitation of minors, the prescription under Article 20 of Legislative Decree 758/1994 will apply, and in case of compliance, a fine equal to a quarter of six times the base penalty (increased by 20%) or that determined following recidivism. Additionally, the amount to be imposed concretely must consider the minimum and maximum limits provided for by paragraph 5-quinquies.
