Modern work organisation within companies must contend with competing demands. On one hand, the continuous growth of activities involving diversified and variable working arrangements (ideally as skilled as possible), combined with the need to cut costs to remain competitive, compels companies to abandon traditional stability and experiment with new forms of organisational flexibility. On the other hand, the need to guarantee — and if possible improve — the level of prevention in the workplace and the safety protection of every worker forces companies to maintain stability and programmatic and organisational certainty in prevention management.
Companies’ demand for labour is therefore subject to frequent fluctuations, both quantitative and qualitative, as it must adapt to changing production needs. This leads to an increase (sometimes uncontrolled) in the tendency to establish temporary employment relationships.
Production needs versus safety obligations: from a regulatory standpoint, while on one front there has been progressive deregulation, on the other the law has maintained rigorous standards — and signs of possible tightening are now emerging. It therefore appears necessary to define the boundaries regarding the application of prevention and safety regulations: to what extent should companies be obligated, and how can the rights of workers in terms of prevention and occupational safety be simultaneously guaranteed?
A telling summary of this “bipolar” situation can be found in the regulation of temporary agency work, one of the most important and controversial reforms introduced by the Biagi Law (Law No. 276/2003), as interpreted by Ministerial Circular No. 7 of 22 February 2005, and regulated by Article 35(4) of Legislative Decree No. 81 of 15 June 2015 (“Organic regulation of employment contracts and revision of legislation on job tasks”). This provision today represents the regulatory reference point for temporary agency work in all respects, including health and safety.
Before analysing its application and effects, it is important to trace the origins and evolution of this legal instrument.
It originated from a principle unequivocally established by law that, over time, proved inadequate and eventually underwent an evolution culminating in its definitive repeal. Law No. 1369/1960 comprehensively and rigorously regulated workforce intermediation, prohibiting (Article 1) the contracting out (or subcontracting or in any other form) of mere work services, for any type of activity, through the use of labour hired and paid by the intermediary (contractor, subcontractor, cooperative, or others). The purpose was to suppress situations in which, under the formal cover of a contract of works, the parties agreed to circumvent workers’ protection rules (including safety obligations). The contractor, lacking its own business organisation or risk-bearing business management, did not possess the essential requirements for a valid contract of works (Article 1655 of the Italian Civil Code), serving only as an unlawful intermediary between the workforce and the client (the actual employer). The changed socio-economic landscape and evolving production processes, entailing ever-greater recourse to decentralisation and outsourcing, made the inadequacy of a strict constraint such as the prohibition on workforce intermediation increasingly evident.
A first exception to this principle was introduced by the regulation of temporary work (so-called “interinale”), enacted under the Treu reform of 1997 (Articles 1-11 of Law No. 196/1997). This aimed to permit, albeit with many safeguards, a more flexible form of labour utilisation: designated agencies could hire workers under temporary subordinate employment contracts and, through a second supply contract with interested companies, make them available to those companies, which benefited from their services while exercising the necessary managerial authority. What was thereby authorised was a supply of mere work services between the agency and the user company.
These provisions soon revealed significant compatibility issues with the more rigorous legislation (both the 1950s-era regulations and those introduced by Legislative Decree 626/1994) on workplace prevention and safety, precisely because of the “dissociation” between the “formal” employer (the agency) and the “substantive” employer, who de facto managed the supplied worker through powers of coordination, oversight, and control (the employer, managers, and supervisors of the user company).
In 2003, the Biagi Law (No. 276/2003) expressly repealed (Article 85, paragraph 1) the previous legislation: both Law No. 1369/1960 and the temporary work provisions contained in the Treu Law (No. 196/1997) were replaced by a new regulatory framework providing explicit regulation of professional workforce supply, termed “temporary agency work” (Articles 20 et seq.).
This legal instrument is structured around two contracts: one for the supply of workers (between the temporary work agency and the user company, Articles 20 and 21) and the other for subordinate employment (between the agency and the worker, Article 22). Temporary agency work may be carried out exclusively by duly authorised agencies supervised by the Ministry of Labour and registered in a specific National Register (the user company bears the burden of selecting a suitable agency, on pain of irregularity of the contract). The authorised agency hires the worker and, in execution of the supply contract, sends the worker to the user company, which utilises the worker and exercises managerial and supervisory authority (Article 20, paragraph 2).
The supply contract is therefore of a commercial nature (in written form, on pain of nullity): particular attention must be paid to specifying any risks to the worker’s integrity and health and the prevention measures adopted (Article 21, paragraph 1, letter d), as well as the tasks to which the worker will be assigned (Article 21, paragraph 1, letter f). An innovative provision is the possibility of an open-ended temporary agency work contract (so-called staff leasing, Article 20, paragraph 3) for specific activities identified by law or by national or territorial collective agreements. Fixed-term temporary agency work, on the other hand, is conditional on the documented existence of specific “reasons of a technical, productive, organisational or substitutive nature”, regardless of whether they are “attributable to the activities of the user company” (Article 20, paragraph 4): the law requires that the reasons compelling the user company to resort to labour without stronger stability commitments be formally justified, also to prevent indiscriminate use that could be potentially dangerous or harmful to workers’ contractual or safety rights.
The safety implications are clearly not eliminated, but the Biagi Law for the first time attempted to explicitly fill the gaps and address the interferences caused by the dissociation of employment relationships, including in the management of accident prevention. Among the primary conditions of lawfulness for establishing a valid supply contract, the law requires (Article 20) that the user company has duly carried out the risk assessment under Article 4 of Legislative Decree 626/1994 (now governed by Articles 17 and 28 of Legislative Decree 81/2008). The aim is to prevent the deployment of personnel for tasks that might be neglected in terms of risk analysis and the adoption of adequate prevention measures.
In an even more comprehensive manner, Article 23 lists the principal prevention and safety obligations, identifying in each case the party responsible for compliance (the agency or the user company). This allocation assigns the user company primary responsibility for guaranteeing the agency worker all the protection obligations owed to its own directly employed workers (Article 23, paragraph 5) and for including supplied workers in the user company’s headcount, but only for the purposes of hygiene, health, and safety legislation: the company must therefore, in terms of prevention obligations, treat supplied personnel (whether on fixed-term or open-ended contracts) as its own (for example, for certain assessment obligations, emergency and evacuation duties, management of first aid teams, and the election of Workers’ Safety Representatives).
The temporary work agency is also obliged, having ensured the worker’s correct insurance against workplace accidents, to verify that the user company has carried out the risk assessment; to inform the worker of the health and safety risks associated with production activities in general; and to train and instruct the worker in the use of the work equipment needed for the specific activities for which they are hired (unless the contract provides otherwise, in which case the worker must also be informed). The supply arrangement becomes irregular (Article 27, paragraph 1) when the contract fails to explicitly indicate any risks to the worker’s integrity and health. A written contract and the obligation to indicate health and safety risks and prevention measures adopted are also confirmed by the reform legislation (Article 33, paragraph 1, letter c of Legislative Decree 81/2015) as elements necessary for valid establishment of the contractual relationship.
One of the areas requiring the greatest attention from both parties is planning the information and training to be provided to the agency worker. It is necessary to document the information provided by the agency and the type (content and timing) of training delivered, to enable the user company to suitably supplement the training based on its own organisational and production experience and operational needs. While the basic information (“production activities in general”) must be provided by the agency, the specifics (conditions, procedures, working environments, collective prevention measures, PPE, etc.) can be delivered more effectively by the user company. Although not expressly required by the legislation (except indirectly under Article 28), it is essential that the user company, within its own risk assessment, has considered all risks related to the supplied work activity without settling for generic indications. There are supplementary risks arising from the specific manner of integration into the company, psychological factors, unfamiliarity with conventional behaviours of each working environment, and the use of often unfamiliar machinery and tools; the user company must ensure adequate information and specific training on these risks. The same applies to effective hands-on training in the use of task-specific equipment, which will have genuine preventive value if delivered in the field by the user company.
Where “the tasks assigned to the worker require special medical surveillance or entail specific risks”, the user company must promptly inform the worker and observe all protection obligations it owes to its own employees. From a medical standpoint, the agency worker must be treated on an equal footing with the user company’s employees. As confirmed by Ministerial Circular No. 7 of 22 February 2005, the user company bears the responsibility of coordinating with its own competent physician to schedule examinations, ensuring that the physician establishes and retains the health records (at the company premises), delivers a copy to the worker and to the temporary work agency, and manages any medical restrictions regarding fitness (partial or full) for work and the assigned tasks.
By utilising the worker according to its own production needs and exercising managerial and supervisory authority, the user company also assumes the obligation to communicate to the agency any information necessary for disciplinary powers or any workplace accidents involving the worker; it is for the agency, once informed, to exercise disciplinary powers independently. Regarding workplace accident management, the user company must maintain at the workplace an accident register (available for inspection by the supervisory authority) in which accidents involving supplied personnel are also recorded, and must promptly notify the temporary work agency for the relevant compliance actions (mandatory reporting to INAIL or other insurance body).
Within this allocation of responsibilities, the liabilities arising from any safety violations must be identified on a case-by-case basis. Recourse to external labour remains a situation of potential organisational difficulty and, consequently, an obstacle to effective safety management. The legislator, however, now provides a regulatory framework that, if it cannot eliminate these risks entirely, at least aims to reduce the circumvention of safety obligations towards flexible workers (making them, in practice, increasingly less “atypical”). To confirm this, the legislator has more recently inserted, within the Consolidated Act on Safety (Legislative Decree 81/2008 as amended), Article 3 (“Scope of application”), paragraph 5: “in the case of workers supplied under a temporary agency work contract pursuant to Articles 20 et seq. of Legislative Decree 276/2003 as amended, without prejudice to the specific provisions of Article 23, paragraph 5 of said Decree, all prevention and protection obligations rest with the user company”.
In continuity, but also in evolution, with the provisions of the still applicable Decree 276/2003, paragraph 5 shifts prevention and protection obligations onto the user company with increasing force, recognising its substantive role as the primary guarantor of safety towards the supplied worker: it is therefore obvious that the user company must guarantee the supplied worker compliance with all protections in force at any given time (the legislation is very categorical on this point). This provision, which is both clarifying and broadly simplifying, appears not to take adequate account of how these workers are actually deployed in practice.
On the other hand, no one is in a position, particularly in the current climate, to challenge the company’s right to use this instrument, while being able (and required) to weigh the benefits and burdens of recourse to the supply contract with greater care. Greater balance on the part of the legislator in defining the actual methods of prevention would not have gone amiss, especially considering that the user company today, in a context of growing organisational complexity, ultra-flexible markets and competition, and extremely tight timeframes, must contend with increasingly intrusive and onerous obligations. The training obligations under the State-Regions Agreement (December 2011 and June 2016) supplementing Legislative Decree 81/2008, regarding the information and training of employees (and equivalent personnel), serve as a prime example. To date, there is a specific regulatory framework for temporary agency work, contained in Chapter IV, Articles 30 et seq. of Legislative Decree 81/2015, entitled “Temporary agency work”.
This reform reshapes the previous framework while maintaining all the aforementioned cornerstones, along with some of the interpretive doubts mentioned above. The new definition at Article 30 is already explicit: “The temporary agency work contract is the contract, open-ended or fixed-term, by which an authorised temporary work agency, pursuant to Legislative Decree No. 276 of 2003, makes available to a user company one or more of its employees, who, for the entire duration of the assignment, carry out their work in the interest of and under the direction and control of the user company”.
If, as is true, what matters in prevention is the substance of the powers governing the employment relationship at stake (as established by consistent case law and by Article 299 of Legislative Decree 81/2008), it seems logical to emphasise that the user company is the entity on which attention must focus to identify the primary guarantor — albeit within a delicate disciplinary and contractual balance that is, so to speak, triangular in nature, and in any case beyond the theoretical assertions prescribed by the legislation.
Maintaining the balance described above, let us focus on Article 35, “Protection of the worker, exercise of disciplinary powers and joint and several liability regime”. First, equal treatment at the expense of the user company, under paragraph 1: “For the entire duration of the assignment at the user company, the workers of the temporary work agency are entitled, for equal tasks performed, to overall economic and regulatory conditions no less favourable than those of the user company’s employees of the same level.” This also applies, to dispel any doubt, in the sensitive area of pay and social security contributions: the employment relationship is with the agency, but the user company “is drawn into it” by paragraph 2: “The user company is jointly and severally liable with the temporary work agency to pay the workers’ remuneration and the related social security contributions, subject to the right of recovery against the agency.”
The prevention point is entirely contained in the new paragraph 4: “The temporary work agency informs workers of health and safety risks associated with production activities and trains and instructs them in the use of work equipment necessary for carrying out the work activity for which they are hired, in accordance with Legislative Decree No. 81 of 9 April 2008.” Information obligations, including specific ones, and training and hands-on instruction fall on the party that sends and pays the worker, because it is the hiring party, but with a safeguard clause to enhance prevention protection through the possibility of transferring these obligations to the user company by explicit contractual agreement (information, training, and hands-on instruction). The supply contract may provide that this obligation is fulfilled by the user company. The user company shall observe towards supplied workers the prevention and protection obligations to which it is bound, by law and collective agreement, towards its own employees. The emphasis is on equal treatment with other workers, and in practice the management of supplied workers is permitted, and perhaps even encouraged, on the same footing as internal, permanent staff — at the expense of the user company. The remaining paragraphs follow and confirm, at the level of remuneration, trade union rights, exercise of disciplinary powers, and any hiring and/or protection and compensation for third-party damages, the principles expressed above.
It thus appears that the legislator has defined the boundaries of the obligations at play, in substantial continuity with the previous regulatory framework, while adding specific (and due) safeguards and facilitations in terms of protection for the workforce category considered “vulnerable”.
IGNAZIO QUATTRIN – Head of Legal Division, CEPER