Last December 6th, with sentence no. 254/2017 the Constitutional Court decided against a suit of constitutional legitimacy raised on article 29, clause. 2, Legislative Decree no. 276/2003, offering, by the same legislative provision, a constitutionally orientated interpretation (not carried out by the referring Courts) which extended joint responsibility to the client of a subcontracting business relationship which until that moment, according to the letter of provision, was of the sole contractor.
So, for a few months now, the entrepreneur has also outsourced a phase of the production cycle of their company through the means of the subcontracting relationship (the subcontracting differentiates itself from the contract, as already clarified on numerous occasions by the same Commission, due to the direct and integral control of staff performance on the part of the client company) is to be held directly responsible, together with the subcontractor, of outstanding wages and interest which the latter fails to pay to their employees and appointed self-employed workers for the fulfilment of the contract.
That which is looked to be highlighted in this speech is, however, the argument put forward by the Commission as result of the extension of the joint liability regime, better explained in the necessity to extend the aforementioned guarantee “at all levels of decentralisation” with the aim of “protection of the subject who ensures an indirect working task”. From a similar assumption, in fact, already the first interpreters of the sentence have distinguished the emergence of a general principle, applicable to all the business contracts which presuppose the employment of “indirect work”, with the consequent extension of joint responsibility beyond the contracting relationship, or to any entrepreneur who “indirectly uses” the labour of employees of another company.
So, a few months after the sentence of last December 6th, a new and extensive application of the above principle has been indicated.
In a recent newsletter from the National Labour Inspectorate (Newsletter No. 6 of 29.03.2018), in fact, the Agency, reflecting on the underlying argument of the sentence made by the Commission, has come to extend the field of joint responsibility under article 29, clause 2 of Legislative Decree 276/2003 to other and additional relationships (other than subcontracting) where the entrepreneur indirectly uses the work of another entrepreneur’s employees, such as the relationships between consortium and consortium members and the hypothesis of internal detachment under article 30 of Legislative Decree no. 276/2203.
Even just to pause a moment on form of detachment (a very common means of outsourcing) and to consider that for this institution the law does not provide any mechanism to protect the attributable employee to joint responsibility between the home employer and the host employer (different to what occurs in contracts pursuant to article 29, clause 2 of Legislative Decree No. 276/2203), Thus, the relevant and imminent practical consequences that may arise from a similar orientation can be well understood, given the Agency newsletter, even if lacking regulatory value (see Repeal 23031/2017 and Council of State, 986/2017), nonetheless provides direction to inspectors; with the effect that said inspectors, in the case where failure to satisfy outstanding salary of seconded personnel, could now lead to cautious investigation directly against the client/deploying companies.
Keep in mind these possible practical effects deriving from the implementation of the principles resigned in the NLI newsletter no.6 of last 29.03.2018, may be appropriate for these economic operators who find themselves in the role of contractor/transferor, to agree in their business contracts to adequate protection to guarantee a greater responsibility of the release agent, or contractual mechanisms of indemnity suitable to reduce the risk that the latter creates large amounts of debts to seconded employees, as well as social security institutions. Among the caution tools that can be taken, for example one can count a guarantor, the provision of a portion of the payment in order to cover eventual non-fulfilment of the release agent, or the simple request of evidence regarding the payment of salaries and contributions (proof of payment reimbursement of the expenses incurred by the release agent). That is the common prudence that already occurs in the business contracts and which are recommended to be implemented in order to limit the risk for the client to need to personally take care of wages and contributions which the contractor has not paid to their employees and to their appointed self-employed workers for the fulfilment of the contract. (ET - MB)
