1. Procurement: among economy, society and poor work
Procurement is a crucial sector for the economy and business strategies, but it has also sadly hit the headlines as a possible breeding ground for unfair practices, up to and including outright labour exploitation. The year 2024 saw the action of various institutions to counter such phenomena. In particular the judiciary (with the Court of Milan at the forefront) stood out for its initiatives, involving multiple sectors (especially fashion and logistics).
Investigations by Public Prosecutor's offices have uncovered phenomena in which companies that were the final beneficiaries of subcontracting chains were ultimately aware or unaware beneficiaries of labour exploitation schemes, not only in economically vulnerable sectors, but also in high-margin production sectors and with no geographical distinction across the country.
In the context of said renewed attention to the topic - which, to tell the truth, has been characterised for some time now by great regulatory vitality (suffice it to think of the countless amendments to the joint and several liability regime) - there arises, most recently, the action of lawmakers with Decree-Law No. 19 of 2024.
2. The reintroduction of criminal liability
Decree Law No. 19 of 2 March 2024, which was published in Official Gazette No. 52 of 2 March 2024 and came into force on the same day, has introduced significant changes in the field of procurement. Subsequently, it was converted into law, with amendments, through Law No. 56 of 29 April 2024, which was published in Official Gazette No. 102 of 29 April 2024 and came into force on 30 April 2024.
One of the most significant novelties introduced by the Decree Law is the reintroduction of criminal liability for infringements related to illegal employment of labour. The penalties, which were abolished or mitigated with the decriminalisation of 2016, are now reinforced to fight phenomena such as the abusive supply of labour, the unlawful use of labour and unlawful posting.
Said legislative choice aims to limit unfair and anti-competitive practices, while at the same time offering greater protection to workers even in situations where there is no labour exploitation, but where there are simulation phenomena or, in any case, the exercise of protected activities, such as staff leasing, without the necessary authorisations.
3. In detail: penalties
The legislation establishes a detailed penalty system for specific breaches.
Here is a summary:
a) Unauthorised staff leasing
b) Non-genuine procurement and posting
c) Fraudulent staff leasing
d) Unauthorised mediation
e) Unauthorised search and selection of personnel or outplacement
4. Guarantees on minimum economic and regulatory treatment
In addition, a general rule has been introduced which states that “Personnel employed in the procurement of works or services and in subcontracting shall be entitled to an economic and regulatory treatment that is on the whole not lower than that provided for by the national and local collective bargaining agreement entered into by the trade unions of workers and employers that are comparatively more representative at national level, applied in the sector and for the area strictly related to the activity that is the subject of procurement and subcontracting”.
The provision is not easy to apply given the difficulty of defining the concept of comparatively most representative trade union, due to the variety and uncertainty of the criteria used.
Moreover, also the reference to the collective bargaining agreement applied by sector and area represents a different concept from the concept used in other regulatory sources, with correlated doubts as to interpretation and application. Needless to say that, if one thinks of the “sector”, there are several national collective bargaining agreements (even considering those that are actually representative) that cover the same activities and could therefore be taken as a reference.
5. A fairer market?
Will the new rules succeed in improving working conditions and promoting a more transparent and truly competitive market? To answer the question, it will be necessary to evaluate the concrete effects of the application of the rules outlined above by the judiciary and inspection bodies.
In the meantime, the debate remains open.
