On 4 November 2016 Law 29 October 2016 no. 199 (“Provisions to counter the phenomena of undeclared employment, of exploitative labour in agriculture and the realignment of wages in the agricultural sector”, published in Italian Official Gazette no. 257 of 3 November 2016) came into force. The main amendments introduced by the legislative action aimed at countering the so-called ‘gangmaster system’ include:
- the reformulation of the criminal offence of “Unlawful intermediation and labour exploitation” punishable under article 603 bis of the Italian Criminal Code;
Following the amendments, the provision provides sanctions (with imprisonment from 1 to 6 years and a fine ranging from 500 to 1,000 euro for each recruited worker):
- the illicit conduct of the so-called ‘gangmaster’, which according to the current wording includes the recruitment of labour on behalf of third parties, under exploitative conditions, taking advantage of the state of need;
- the conduct of the employer who uses, hires or employs workers recruited in the manner referred to above. The law provides a more severe penalty (with the application of imprisonment from 5 to 8 years and a fine of 1,000 to 2,000 euro for each worker recruited), in relation to ‘gangmastering’ committed with violence and threats (paragraph 2). Finally, the reformulated offence continues to provide for (paragraph 3) the enumeration of some symptomatic indices of worker exploitation, as well as three specific aggravating circumstances of the crime (under paragraph 4), increasing of the sentence from a third to a half;
- the introduction of the offence of ‘gangmastering’ among the predicate offences pursuant to Legislative Decree no. 231/2001.
The offence of “Unlawful intermediation and labour exploitation”, recalled in article 25 quinquies, paragraph 1, letter a) of Legislative Decree no. 231/2001, in case of commission of the crime in the interest or to the advantage of the company, providing for the application of administrative fines ranging from 400 to 1000 quotas: in the corpus of Legislative Decree 231, the reinforcement of the criminal action in relation to the employment terms and conditions, previously limited to the repression of the offence of employing illegal workers under article 25 duodecies of Legislative Decree 231/2001;
- the precautionary measure of judicial control of the company in the criminal proceedings in relation to the crime of ‘gangmastering’ (article 3 of Law no. 199/2016), replacing seizure pursuant to article 321, paragraph 1, of the Italian Criminal Procedure Code, in the case that the interruption of business could have negative consequences on employment levels or compromise the value of the company;
- the introduction of the mitigating circumstance consisting in cooperation with the Authority and mandatory confiscation, also of equivalent value.
Particularly, new provisions under articles 603 bis 1 and 603 bis 2 of the Italian Criminal Code introduce:
- a new special mitigating circumstance (with reduction of the penalty by one third to two thirds), in the case of collaboration with the Authority, aimed at preventing further consequences of the criminal activity and/or to secure evidence of the crime and/or the identification of other individuals responsible for the crime and/or seizure of sums/other transferred assets;
- (in the case of conviction or plea bargain), the obligatory confiscation, also in the equivalent form, of the things that were used or were intended to be used to commit the offence and constitute the price, product or profit of the crime, except when such things which belong to a third person unrelated to the offence (in any case, without prejudice to the injured party’s rights to obtain restitution and compensation for damages);
- the inclusion of article 603 bis of the Italian Criminal Code among the offences for which extended confiscation is provided pursuant to article 12 of Decree no. 306/1992 converted with modification in Law. no. 356/1992.
To the offence of ‘gangmastering’, both with a conviction or plea bargain, the obligatory confiscation of money and/or goods and/or other benefits, with unjustified origin, that the convicted person, even though a natural or legal person intermediary, who turns out to be the owner or to have access to, in a disproportionate value to his income (declared for income tax) or economic activity, is applied;
- the mandatory arrest for the hypothesis of unlawful intermediation and labour exploitation committed with violence and threats.
The new law has introduced the offence of ‘gangmastering’ committed with violence and threats (provided by article 603 bis, paragraph 2) among the criminal offences referred to in article 380 of the Italian Criminal Procedure Code, in relation to which the mandatory arrest upon the act of the crime it is provided for (article 380, paragraph 2, new letter d.1).