Construction sites: some notes on the points-based licence

Construction sites, defined by law as “temporary or mobile construction sites” and governed by dedicated legislation (prior to Legislative Decree 81/2008) and currently by Title IV of the Consolidated Act, have always been considered high-risk working environments. Statistics provide no reassurance for the sector, unfortunately confirming the hazardous nature of places where highly specific spatial and temporal conditions and vulnerabilities converge, including, to name just a few:

• The simultaneous presence of multiple performing contractors in confined and frequently changing spaces;
• High-risk operations (excavation, work at height, assembly of prefabricated elevated elements, handling of suspended loads, interferences, open flames, electrical risks, etc.)
• Weather and climate-related difficulties and complications;
• Tight work schedules, often constrained by very strict deadlines and contractual penalty clauses that are highly punitive for the performing contractor;
• Use of labour and tradespeople who are not always specialised or who are entering the workforce for the first time;
• Recourse to subcontracting, in the private sector, that is not always justifiable or controlled;
• Statistically frequent recourse to irregular work;
• Difficult access control;
• Continuous material deliveries with access by construction vehicles and resulting interferences.

In short, the construction site has long been viewed as the “hazardous workplace par excellence”, the primary concern when discussing worker safety and prevention. It matters not that there are highly advanced, certified operations with cutting-edge technologies and organisations: the average commentator, whether ordinary citizen or consultant, holds this perception of danger and sees it confirmed by looking around (construction sites are everywhere), whether with informed understanding or superficiality. What ultimately brings everyone into agreement are the facts. With tragic regularity, the news reports extremely serious incidents, devastating workplace accidents, loss of life, and families and businesses marked forever. The examples are many, and the most recent (irrespective of the dynamics, which are not the subject of this commentary) has triggered yet another government response.

Post-incident reactions always follow the same pattern: controls are lacking, there are too few inspectors to conduct oversight (both regarding operational safety and the regularity of personnel and employment relationships). This time, however, beyond the somewhat superficial or generic comments, seasoned with the regret and contrition typical of hindsight, given the severity and visibility of the event (in terms of human losses, locations, and the prominence of the companies involved), the response gave rise to new legislation with provisions that significantly affect the aforementioned controls. The Government, confirming the urgency of the intervention (an urgency that always seems somewhat belated, given that construction sites have always existed and today’s accidents and fatalities are added to a long list of previous incidents), issued Decree-Law No. 19 of 2 March 2024, published in the Official Gazette, General Series No. 52 of 02/03/2024, entitled “Further urgent provisions for the implementation of the National Recovery and Resilience Plan (PNRR)”. This Decree-Law has a very broad scope, and within Chapter VIII of Title II sit the (urgent) provisions on preventing and combating irregular work. Article 19 of the Decree contains significant new provisions, among which the so-called points-based licence for performing contractors on construction sites stands out. For a detailed technical analysis we defer to a later date, also because, given the outcome, it is easy to anticipate a conversion into law (after the standard 60 days) with amendments and adjustments. In the meantime, it may be worth listing some reflections and comments regarding Decree-Law 19/2024.

1. The measure appears less emergency-driven than others, despite the urgency inherent in the chosen legislative form (the decree-law); in practice, certain labour regulations are amended, and in particular the existing Article 27 (Qualification system for companies and self-employed workers through credits) is entirely rewritten and replaced. Such a substantial amendment appears more stable in character and charts a clear direction for the future (setting aside the implementation difficulties discussed below): in practice, before the requisite field inspections, companies (and self-employed workers) are classified and verified through a unified system resulting from a “structural” legislative intervention. Given the kaleidoscope of amendments or delays in implementation and the stratification of laws from which Legislative Decree 81/2008 continues to suffer almost chronically, this intent seems like welcome news.
2. Another positive point: precisely because it operates upstream of inspections and controls, the points-based licence and its governing system finally appear to push towards a much-needed responsibilisation of companies, who are called upon to obtain the necessary formal qualifications in advance and, above all, to preserve their status during operations. The spirit informing the points-based licence provision should be the same as that of all existing legislation: to act as a deterrent, to inspire and encourage appropriate conduct for the protection of a value or interest deemed significant. The health and life of those who work should be the priority in every environment where it is put at risk: the workplace, the road, public spaces, recreational or otherwise, private dwellings, etc. We know, however, that this is not the case, and the negative results are plain to see. In this instance, the points-based licence focuses on adherence to the law and on the prevention activity that must underpin the execution of work, particularly within a construction site. Moving from a “wait-and-see” approach, characteristic of companies that only act when inspected (or rather, after inspections), to one of active engagement in preventing problems (including loss of points) — requiring companies to demonstrate genuine and effective prevention — appears to be an objective very much in line with the original spirit of the legislation. Companies are called upon to self-monitor before responding to an external inspection and possible sanctions; this is positive because it stimulates the prevention culture of the company and its management, as well as the workforce: lawful and safe work as an essential element of the organisation, regardless of inspections and penalties. This aspect does not appear to be appreciated by the broad spectrum of critics, namely trade unions and employer organisations, both concerned about the lack of coherence and improvisation of the intervention (deemed too “emotional”) and above all about the operational consequences for companies. They interpret the change as though the rest of the legislation did not exist and were not already in force…
3. While the above is true and justifiable, it should also be noted that a precedent still in force, albeit of lesser impact — namely the possibility of suspension with related precautionary measures — does not appear to have sufficiently “stimulated” companies: the threat of possible suspension of business activities under Article 14 (revised and updated by the 2021 Decrees) has yet to see significant practical application in cases of serious violations listed in Annex 1 of the law. The violation categories are specific and the countermeasures appear inadequate. Despite the stated purpose being explicit in the title of Article 14 (Measures by the supervisory bodies for combating irregular work and for the protection of worker health and safety), and substantially identical to that of the new decree-law, results have not materialised, in any sector and not just construction. A “threat”, albeit not as organically integrated with the rest of the existing regulatory provisions, already existed but has not worked, at least thus far. The INL inspectors, who have expanded the ranks of external controllers over the past two years, do not appear to have achieved the hoped-for change. Companies, for their part, have quickly “adapted”. Now the points-based licence provides for a deduction of 10 credits upon detection of the same violations (Annex 1), and the link is concretely operational, and perhaps more threatening.
4. Regarding construction sites: the qualification system envisaged in the original version of Article 27 was intended to apply to ALL companies or self-employed workers, in every sector. The new Article 27 instead focuses solely on temporary or mobile construction sites, effectively exempting all others from this requirement (i.e. obtaining the licence and maintaining the associated credits over time). As a signal, this is not ideal, given that other sectors are by no means exempt from implementation challenges and prevention shortcomings are well distributed across every type of business. The amended obligations concern Article 90 (Obligations of the client or works manager) and the related penalties (Article 157). Other parties do not appear to be affected. It should be noted that the licence may be extended to other sectors by decree of the Ministry of Labour and Social Policy and on the basis of trade union-employer agreements. Construction sites could therefore serve as a testing ground for extending the system to other productive sectors.
5. On closer examination, the scope of application appears narrow but becomes potentially quite broad. Requiring a points-based licence “for all companies operating within a temporary or mobile construction site under Article 89, paragraph 1, letter a)” means going beyond strictly construction companies and their typical operating location (the construction site) to extend applicability to any entity, including self-employed workers, that carries out activities including “maintenance, repair, remediation, fitting (of fixed permanent or temporary works (…) including structural parts of electrical lines and electrical installations, road works…)” as provided by Annex X of Legislative Decree 81/2008. The scope — and therefore the obligation to apply for, obtain, and maintain the licence — thus easily extends to a wide range of activities and operators, considering also that the former chronological/dimensional thresholds (200 worker-days) from the past (Legislative Decree 494/1996) no longer exist, and a temporary or mobile construction site, even of reduced dimensions, is more easily established: what matters is the type of activity and work, in which other companies, different and not specifically construction firms, could from time to time fall within the requirement of holding a licence with at least 15 credits.
6. Regarding the specific points-based licence and the mechanisms governing its use: among the prerequisites for obtaining it, the requirement for “possession of the Single Tax Compliance Certificate (DURF)” is notable, a document hitherto linked to contracts for specific (labour-intensive) work exceeding certain minimum economic thresholds (EUR 200,000), involving the use of equipment and predominantly at the client’s premises. Now the DURF is required as a general prerequisite, and this risks creating misunderstandings, failure to issue the document, interpretive difficulties, and application short-circuits. This appears to be an oversight that the conversion decree will need to remedy, or at least clarify, or ensure operational feasibility.
7. Regarding violations and credit deductions on the licence: providing (Article 29, which amends Article 27, point d) of the Decree-Law) for the loss of credits respectively in the event of “1) a workplace accident resulting in death (20 credits) or 2) permanent incapacity for work, total or partial (15 points) or temporary total incapacity for work requiring absence from work for more than 40 days”, but only in the event “of established employer liability” (note the manifest presumption of guilt of the top management — and what of other positions of guarantee? for example managers, perhaps holding a delegation of functions?); in any event this provision appears to culpably ignore the time required to reach a final judgment in criminal proceedings, leaving the company operational in the interim or at the mercy of judicial proceedings, except for direct recourse to precautionary suspension of the licence for 12 months (without explaining, from the thirteenth month until the hypothetical final judgment, how the company and its leadership should conduct themselves).
8. From an operational standpoint: the adjudicating authority in the aforementioned cases (final convictions for manslaughter or very serious or serious personal injuries through negligence) must communicate the outcome of its rulings to the National Labour Inspectorate, in addition to the interested parties via the requisite notifications. This presupposes a fluidity of communication between administrations and institutions that does not exist (and the National Information System for workplace prevention, provided for 16 years under Article 8 of Legislative Decree 81/2008 but still at the project stage on paper, eloquently testifies to the difficulty of this provision: there is a risk of undermining the entire enforcement and penalty framework).
9. The same system of communication, desirably effective but in practice non-existent, underpins the mechanism for reinstating credits deducted following violations, enforcement measures, suspensions, or convictions: recovery may occur “following attendance, by the person against whom one of the measures (…) was issued, on condition that a copy of the relevant attendance certificate is transmitted to the competent office of the National Labour Inspectorate.” The intention is sound: restoring credits by assigning training a central role. On one hand, however, it risks becoming a mechanism that makes the “remedial” action easily automatic; on the other, it fails to account for another of those forgotten implementing decrees that undermine the coherence of the current regulatory framework. To date, the State-Regions Agreement that should govern employer training has yet to be enacted, meaning that credit reinstatement is made conditional on something not yet regulated by prior legislation, undermining its operation or encouraging “borderline” training practices. A corrective measure, or better still the enactment of the Agreement in question, ideally simplified and consistent with this and other relevant provisions, is clearly urgent.
10. Of interest, however, and by now a recurring feature of various legislative interventions in this area, is the explicit promotion of facilitations (+5 credits) for companies that adopt organisation and management models pursuant to Article 30 of Legislative Decree 81/2008 (whether certified or not).
11. The penalty (and therefore the deterrent effect) for operating without the eligibility prerequisites — that is, without a licence or below the credit thresholds, including cases where contracting or subcontracting companies are allowed to operate under such conditions — appears rather modest and of limited effectiveness: an administrative penalty of between EUR 6,000 and EUR 12,000, not subject to the notice procedure under Article 301-bis, and exclusion from participation in public works under the Public Contracts Code for six months. The consequences for the company would be minimal (or averagely manageable without evident side-effects: it is sufficient to pay), relative to the operational and production demands arising from the construction site. This risks encouraging a wait-and-see attitude on the part of companies (those acting in bad faith, or aware of issues that would jeopardise obtaining the licence, or who consider the credit-reinstatement training courses a waste of time, or the eligibility checks on their contractors), betting on the statistical improbability of being caught, rather than promoting genuine preventive behaviours by anticipating and resolving potential problems and avoiding inspections and credit losses at root.
12. The urgency and emotional response to the news must then reckon with reality: implementing the provisions in terms of administrative, IT, human, and financial resources will have a cost and take time. The points-based licence and the related penalties will only come into force from 1 October 2024, provided that the “dedicated section of the national undeclared work portal” into which each company’s information is to be fed is operational and the ministerial decrees governing the application, issuance procedures, and informational content of the licence are enacted.
13. And finally, how everything described in the preceding points is realistically enforceable and applicable to a self-employed worker.

In conclusion, there is no shortage of positive elements, but the path towards a concrete improvement in safety, on construction sites and within specific business organisations, remains full of unknowns. The direction appears set, and one can only hope that the legislator, the supervisory bodies, and of course the companies themselves honour their commitments.