In Italian ports there is a known dualism between terminal operators within the meaning of Article 18 of Law 84/94 and the temporary employment agencies under Article 17 of the same law that provide staff to terminal operators, when needed.
So, in the specific case of the staff leased by an agency who work on a temporary basis in the port organisation of the terminal management company, who is, legally speaking, the employer?
Whereas it is up to the Port Authorities to set out specific provisions to regulate the supply of temporary port workers and the activity of staff leasing agencies, the law does not seem to have a clear-‐cut answer to the question.
First, it should be noted that staff leasing involves the presence of two different employers: the staff leasing company (the “formal” employer to whom an employee is bound by an employment relationship) and the user company (the “substantial” employer in whose interest and under whose direction and control the work is carried out).
Unfortunately, the law does not shed light on this issue.
This is a pity, considering the great impact the issue at hand has in practical terms, particularly on account of the very stringent obligations which employers are subject to, concerning, inter alia, workers’ safety, such as the obligation to keep an accident record book2.
So, taking into account that, in case of accidents (even of a minor nature), these must be reported in the relevant record book (under penalty of severe fines3), who has the obligation to keep the book, the staffing company or the user company to whom temporary workers are supplied?
In the absence of an express provision on this point in the law, reference should be made in particular to Legislative Decree No. 81 of 9 April 2008 (Consolidated Act on Workplace Safety) and to Legislative Decree No. 276 of 10 September 2003, which introduced in our system the contractual arrangement known as “staff leasing”.
More specifically, under Article 3, fifth paragraph, of Legislative Decree No. 81 of 9 April 2008, all prevention and protection obligations are on the user company and under Article 23, fifth paragraph, of Legislative Decree No. 276 of 10 September 2003, the user company is subject to all the obligations aimed at protecting temporary workforce, while being liable for any breach of the safety obligations provided by the law and collective labour agreements.
At the same time, however, under Article 23, first paragraph, of Legislative Decree No. 276 of 10 September 2003, staff leasing agencies must comply with all and any obligations concerning accident-‐at-‐work and occupational disease insurance for workers, while under Article 23, fifth paragraph of the same decree, they must train and inform workers about the work they are going to do and the risks to their health and safety involved with activities at work.
The obligation to keep an accident record book (as well as all the obligations relating to the safety of temporary port workers) is therefore on the user company, which, accordingly, is also responsible for recording any accidents occurring to temporary workers supplied.
Nevertheless, in light of its obligations relating to insurance against accidents at work and occupational disease, the staffing company, after being promptly informed by the user company, will have to report any accident to INAIL (the Italian Institute for Insurance against Accidents at Work) 4 or to any other competent insurance institution.
The agency providing temporary port workers, in its capacity as their “formal” employer and also in light of its insurance-‐related obligations, will in turn be responsible for keeping a record book of any accidents occurring to the workers supplied. So, the answer to our initial question is that both the staffing company and the user company are subject to the obligation to keep an accident record book.
We will come back soon on this to address another important question that is a direct corollary of the above principle: in case of staff leasing, who has supervisory and disciplinary power over the staff supplied by the staffing agency?