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Caporalato - The regulatory path
Caporalato - The regulatory path
The prohibition to conduct activities aimed at inserting workers in the labour market was laid down in Art. 27 of Law No. 264/1949 (Provisions concerning access to work and support to involuntarily unemployed people). In accordance with said law, infringements were sanctioned with a fine and the confiscation of the means of transport used for the illegal activity. The prohibition was then reasserted by Articles 1 and 2 of Law No. 1369/1960 (Prohibition to carry out labour intermediation and interposition and New regulations on the employment of workers with contracts providing activities and services).
Said prohibition was formally abolished by Lgs.D. No. 276/2003 (Implementation of proxies with regard to employment and the labour market, as provided for by Law No. 30 of 14 February 2003) reformulating labour instruments with the aim to counter the phenomenon. Subsequently, L.D. No. 138/2011, converted in Law No. 148/2011, upon trade unions' pressure, introduced a new crime in the Italian legal system, that is "Illegal intermediation and labour exploitation" (Art. 603 bis Code of Criminal Procedure).
Lgs.D. No. 109 of 16 July 2012, which adopted Directive 2009/52/EC of the European Parliament and of the Council (the so-called Directive on sanctions), increased the sanctions against employers that hire workers irregularly. In fact, it provided for aggravating factors (with sanctions increased from one third to half) when the prohibition to employ irregular foreign citizens is characterised by "particular exploitation." Moreover, with the aim to foster the reporting of criminal acts, said decree established that, in cases of particular labour exploitation, foreign citizens who report employers or cooperate in criminal proceedings against them can be granted - upon the Judge's proposal or favourable opinion - a RESIDENCE PERMIT HAVING AS REASON"FOR SPECIAL CASES," pursuant to Article 22, paragraph 12 sexies of Lgs.D. No. 286/1998 (as last amended by Law No. 132 of 1st December 2018).
In 2014 (with Art. 6, l.d. No. 91/2014, converted with amendments by Law No. 116/2014), the legislator decided to invest agricultural holdings with the responsibility to create an ethically oriented production chain through the creation of a Network for Quality Agricultural Labour. In accordance with the law, the agricultural holdings allowed to register with the Network are those without criminal convictions or ongoing criminal proceedings for the infringement of regulations on labour and social legislation, for unpaid taxes on incomes and added value, and those that have not been recipients of definitive administrative sanctions and have paid national insurance contributions and insurance premiums. The aim of the Network for Quality Agricultural Labour is to lead the demand for agricultural products to be based on ethical production methods. To such end, INPS publishes a list of agricultural holdings belonging to the Network, so as to encourage virtuous conducts in employers and to deal with criticisms - coming also from other European Countries - on the scarce respect in Italy of farm workers' human rights.
With the entry into force of the Jobs Act, Lgs.D No. 149/15 introduced the National Labour Inspectorate as the sole Agency under public law authorised to integrate the investigations carried out by the Ministry of Labour, INPS and INAIL. The Agency also conducts prevention activities and promotes legality with regard to Bodies, employers and associations with the aim to counter undeclared and irregular employment. Moreover, it carries out and coordinates surveillance throughout the whole national territory with regard to labour, taxes, mandatory insurance, and social legislation within the limits of the competences already assigned to the personnel of the Ministry of Labour in charge of investigations.
Subsequently Law No. 199/2016, titled "Provisions for countering undeclared employment, labour exploitation in agriculture and for the realignment of wages in the agricultural sector," provided for specific measures addressed to seasonal farm workers, extending liability and sanctions with regard to gang masters and entrepreneurs that make use of their intermediation. The main interventions of the law were as follows:
redrafting of the crime related to the gangmaster system (illegal intermediation and labour exploitation), introducing sanctions also for employers;
implementation of extenuating circumstances in the event of collaboration with the authorities;
mandatory arrest in flagrante delicto;
development of the confiscation system;
adoption of precautionary measures with regard to the agricultural holdings in which the crime is committed;
extension of liability to legal persons for the crime related to the gangmaster system;
extension of the Fund against human trafficking to victims of the gangmaster system;
development of the Network for Quality Agricultural Labour as an instrument aimed at controlling and preventing undeclared employment in agriculture;
gradual realignment of wages in the agricultural sector.
Specifically, said law reformulated, updated and increased what laid down in Art. 603-bis of the Code of Criminal Procedure, which provides for sanctions in the presence of illegal intermediation and labour exploitation. Liability and sanctions are therefore extended both to gang masters and entrepreneurs that make use of their intermediation.
Lastly, a first institutional and interregional commitment was laid down with the Experimental protocol countering the gangmaster system and labour exploitation in agriculture (Care – Legality – Exit from the Ghetto), signed on 27 May 2016 and in force until December 2017.
As of 3 September 2018, the Ministry of Labour and Social Policies has provided for the setting up of a technical table to coordinate and define a national strategy based on a three-year plan, aimed at countering the serious phenomenon of labour exploitation. Article 25 quater of Law No. 136/2018, converting in law L.D. No. 119/2018 , officially set up at the Ministry of Labour the TABLE TO COUNTER THE GANGMASTER SYSTEM "with the aim to foster the realisation of a fruitful strategy to counter the gangmaster system and related labour exploitation in agriculture."
The Table, chaired by the Minister of Labour and Social Policies, is composed of the representatives of various Ministries (Interior, Justice, Agricultural Policies, Infrastructure and Transport), ANPAL, the National Labour Inspectorate, INPS, the Carabinieri's Labour Protection Office, the Guardia di Finanza, Regions and the autonomous provinces of Trento and Bolzano, and the National Association of Italian Municipalities (ANCI). The meetings are open also to the representatives of employers and workers involved in the sector as well as to Third sector organisations.
The Table's works will last for three years from its constitution and may be extended for an additional three years.
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