With D.L. n. 19/2024, effective on 2 March 2024 and converted by modifications from L. 56/2024, the legislator has repealed Article 38a of the D. Lgs. 81/2015 that punished the illicit administration of labor and inserted the new discipline within the Decree Biagi, art. 18. Not only does this article penalize the illegal use of labour with more severe penalties, but it also reintroduces criminal rules in the context of unfair contracts which conceal an illicit placement of labour and in the context of unauthorised secondment of labour.
The new regulation penalises the supply of labour by means of secondment by persons not previously authorised by the Ministry of Labour or by a contract lacking the substantive and formal elements, that is when even one of these elements is missing: organisation regarding the work or service referred to in the contract; the contractor’s exercise of organisational and managerial power in respect of the workers employed in the contract; Taking of business risk by the contractor.
Such unlawful conduct is punishable by arrest for up to one month or a fine of € 60,00 per employee and per day of employment. If there is exploitation of children, the penalty is imprisonment for up to 18 months and the fine is increased by six times.
As also mentioned, the new article 18, recalling the repealed article 38a, D. Lgs. 81/2015, punishes the employer and the labour user who have acted with the specific aim of circumventing mandatory rules of law or collective agreement with the most serious penalties of arrest up to three months or a fine of € 100,00 for each worker involved and for each day of administration.
Art. 18 in the commentary, paragraph 5 quater, states that fines are increased by 20% if the employer has been subject to criminal sanctions for the same offences in the previous three years. The pecuniary penalties imposed pursuant to art. 18, Decree Biagi, however, may not be less than € 5,000.00 and more than € 60,000.00.
In case of violation of art. 18, Decree Biagi, the inspection staff, pursuant to and for the effects of arts. 20,21, 23, 24 and 25, D. Lgs. 758/1994, must give offenders a mandatory prescription. The Public Prosecutor will request the filing of the case for the extinction of the offence when the offender, having fulfilled the mandatory prescription, performs the payment, in an administrative instance, of a sum of money equal to one quarter of the maximum fine fixed for the contravention committed. The procedure for the contravention remains suspended from the moment of the entry of the notice of offence in the register referred to in art. 335 of the Criminal Procedure Code until the Public Prosecutor receives notification of the fulfilment or failure to fulfil the requirement imposed by the inspection staff and the payment of any sums due in administrative proceedings.
For the purpose of determining the date on which the offence was committed, both relevant for the determination of the applicable legislation and relevant for the start of the limitation period, since it is a permanent offence, reference should be made to the date on which the conduct ceased.
For conduct that began before the date of entry into force of D. L. no. 19/2024 and continues beyond that date, the offence in question may only be constituted as from 2 March 2024, resulting in the corresponding criminal sanction only for days after that date.