The use of illegal labour agencies cannot be ruled out in the case of workers employed with a car and a home provided

The fact that an exploited worker is in need cannot be disregarded, for the purposes of establishing the offence of illegal recruitment, simply because they are legally employed, own a car, a home and, if dismissed, may have access to social security benefits. The Court of Cassation has thus upheld the appeal by the public prosecutor’s office against the decision of the review court to quash the precautionary measures against the de facto directors of a limited liability company (S.r.l.), who are under investigation for illegal recruitment, in connection with the alleged exploitation of petrol pump attendants, who are under investigation for illegal recruitment practices.

In the view of the trial judge, the oppressive working conditions had, in fact, been proven, imposed on pain of dismissal, with reduced wages, shifts exceeding those stipulated in the contracts, arbitrary deductions from pay, no pay rises for overtime, night work, work on public holidays or Sundays, and no thirteenth or fourteenth month’s salary. The Court had, however, rejected the claim of financial hardship, which formed the basis of the offence of illegal recruitment provided for in Article 603-bis of the Criminal Code. This was because all the workers were legally employed and, therefore, in the event of dismissal, would be eligible for the employment support measures provided for by law. Furthermore, the Court considered them to be ‘well-off’ as they owned a car, albeit an ‘old’ one, and had a home. Depending on the work they carried out, even if they lost their jobs, they could therefore maintain ‘a minimum standard of a dignified life’.

A decision with which the Supreme Court does not agree, starting first and foremost with the concept of a state of need, which should not be understood as a state of necessity such as to completely nullify any freedom of choice. Rather, it should be understood as a situation of serious hardship, even if temporary, such as to limit the victim’s free will and induce them to accept particularly disadvantageous conditions. These conditions must be assessed on a case-by-case basis.

It is wrong to deny that a person is in need as a result of the prospect of receiving NASPI, in the event of dismissal or, worse still, resignation, because the worker must always prove – and this is never an easy task – that the reasons were legitimate in order to qualify for the statutory benefit, which lasts for a maximum of two years and is ‘equal to half the number of weeks of contributions accumulated in the four years prior to the loss of employment (four years during which the worker must have accrued at least thirteen weeks of contributions). If one considers – as the Court of Cassation states – that the amount of the benefit is less than the remuneration (equal to approximately 75 per cent of that) and that NASPI is calculated on the basis of officially paid wages (and contributions duly paid)’.

In this context, it is clear that workers suffer harm as a result of undeclared wages or wages paid at a lower rate than agreed. Points to consider when assessing the state of need, which leads to accepting unfair conditions, a factor in which household income, any spouse and/or dependent children, basic living expenses, including those necessary to ensure compulsory education for children and the health of household members, mortgages taken out to purchase the family home, and so on.