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Sanctions for the recruiment of illegal workers
Sanctions for the recruiment of illegal workers
Legislative Decree no. 109 of 16 July 2012 implemented the Community Directive 2009/52/EC aimed at strengthening cooperation between Member States in the fight against illegal immigration, by introducing a prohibition for employers to employ third-country nationals whose residence is illegal, as well as minimum standards relating to sanctions and measures in respect of such employers.
Since this is a ban already provided for by Italian legislation (Article 22, paragraph 12 of Consolidated Immigration Act prescribes that the employment of foreigners whose residence is illegal is punishable with imprisonment from 6 months to 3 years plus a fine of €5,000 for each worker employed), the new legislative decree has only introduced some amendments to the existing regulatory framework.
The measure provides for aggravating circumstances (with sanctions increased by one third to one half) in cases where prohibition of the employment of foreign citizens whose residence is irregular, is characterized by "particular exploitation", i.e.:
more than three workers are employed illegally;
minors under working age are employed;
there are examples of exploitation as described in Article 603 bis of the Penal Code.
In addition to the sanctions already envisaged by the legislation in force an accessory administrative sanction has been introduced, which the court applies upon conviction, namely, the payment of an amount equal to the average cost of repatriating the illegally employed foreigner (criteria for the determination of this cost will be established with a subsequent Inter-Ministerial Decree).
New sanctions for legal persons
If there are circumstances of "particular exploitation", the law also introduces, within the framework of Legislative Decree No. 231 of 2001, a pecuniary administrative sanction (from 100 to 200 quotas, up to a limit of €150,000) for legal persons who have profited through illegal employment of foreign citizens.
No work permits for employers sentenced for illegal employment of foreigners or labour exploitation
The rules have also introduced a prohibition on obtaining work permits for foreign workers for employers who have been convicted in the preceding five years, even if not definitively, for offences linked to labour exploitation or to the illegal employment of foreign citizens and the aiding and abetting of illegal immigration.
Temporary residence permit for workers who report serious abuse in the workplace
In order to foster the exposure of labour exploitation offences, foreigners who report these or cooperate in criminal proceedings instituted against the employer may obtain, on a proposal or with the favourable opinion of the judge, the issuing of a residence permit valid for a period of six months and renewable for one year or for a longer period if required to complete the criminal proceedings.
This residence permit allows employment and is convertible.
In addition a law against the so-called phenomenon of Caporalato (illegal recruitment of agricultural workers) was adopted on the 18th of October 2016. (L. 199/2016)
The measure concerning "Provisions to counter the phenomena of undeclared employment, of exploitative labour in agriculture and the realignment of wages in the agricultural sector", introduced significant changes to the regulatory framework of criminal law. In particular the new wording of Article 603-bis of the Penal Code (Illicit intermediation and labour exploitation), provides a case-based account of crime which excludes violent, threatening or intimidating behaviour in the unlawful conduct of the gangmaster, i.e. those who recruit labour on behalf of third parties, under exploitative conditions, or taking advantage of their state of need.
The new offence of gangmastering, for which arrest in flagrante delicto is mandatory, includes the sanctionability of an employer who uses, hires or employs labour recruited also – but not necessarily through the use of gangmastering – by intermediation activities, exploiting workers and taking advantage of their state of need.
Finally, the DECREE OF THE MINISTRY OF THE INTERIOR AND THE MINISTRY OF LABOUR AND SOCIAL POLICIES OF 10 FEBRUARY 2017, laying down "Determination of procedures and terms to ensure interested foreign nationals have the information referred to in Article 6 paragraph 2 of Directive 2009/52/EC."
This Decree emphasizes in the first place, in Article 1, that the employer who has illicitly employed a foreigner whose residence is illegal, is still required to pay:
a) all the salary in arrears; the level of remuneration equal to the remuneration due on the basis of the national collective agreements relating to the activities carried out for the level and duties indicated, which must not however be less than the monthly amount provided for the social allowance for domestic work relationships and not less than the minimum daily wages reassessed annually by INPS, pursuant to Law no. 389 of 7 December 1989, for other work relationships;
b) an amount equal to the tax and social security contributions that the employer would have to pay in the event of legal employment of the foreigner, including penalties for late payment and the related administrative sanctions.
To ensure that foreign workers recruited illicitly whose residence is illegal have knowledge of these rights and the procedures to assert the rights referred to in Art. 1, lett. a), 1(a), and file a complaint against an employer, a special form has been prepared. This form is given to the person concerned by the staff of the office or agency which has tracked down the foreigner, whether an employee of the Ministry of Labour and Social Policies (e.g., staff employed in inspection activities, or an employee of the National Labour Inspectorate), the Police, or other bodies (e.g., the Harbour Offices – Coast Guard, local police, …).
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