The points-based driving licence as a new business classification system.
As a result of Legislative Decree 19 of 2 March 2024, starting next October, the qualification system for businesses and self-employed workers (art. 27 Legislative Decree 81/08) will change with the introduction of the so-called points-based driving licence. Businesses and self-employed workers who “operate in temporary or mobile construction sites referred to in Article 89 paragraph 1 letter a)” are equipped with a license to which an initial score of thirty credits is attributed.
The driving licence is subject to reductions related to the findings of the investigations and the consequent definitive provisions issued against employers, managers and supervisors of the company or the self-employed worker in different amounts depending on the type of violation.
a) verification of the violations referred to in Annex I: ten credits;
b) identification of violations that expose workers to the risks indicated in Annex XI: seven credits;
c) sanctioning provisions referred to in Article 3, paragraphs 3 and following, of Legislative Decree no. 12 of 22 February 2002, converted, with amendments, by Law no. 73 of 23 April 2002: five credits;
d) recognition of the employer’s liability for an accident at the workplace resulting in:
1) death: twenty credits;
2) a permanent incapacity for work, absolute or partial: fifteen credits;
3) a temporary absolute disability which requires abstention from work for more than forty days: ten credits.
Lost credits can be recovered by participating in safety courses, up to a maximum of five for each course and, in any case, a maximum of fifteen (per year or overall? It is not clear).
Businesses or self-employed workers with less than fifteen points cannot “operate on construction sites”,except for the possibility of concluding ongoing contracts.
Critical issues of the reform.
When does the basis for the deduction of points arise?
The legislator has not taken a position and has limited itself to referring to the unspecified “definitive provisions issued against employers, managers and supervisors of the company or the self-employed worker.” According to the provisions of the new law, it will be the task of the Labour Inspectorate to issue the provision for the reduction of points.
It is up to the administrative authorities to send the information to the INL regarding the violation. But if the violation is of a criminal nature, there is no “final” provision, therefore it is not possible to deduct points, at least until the conviction has become final.
It is not clear how to behave in the event that the decision of the administrative authority is then disregarded by the criminal judge who has deemed the contested violation non-existent. If the points have already been deducted, how to remedy it?
The new regulation creates a mix of individual and corporate responsibilities that risks generating injustices. Even the offence of the supervisor, for example, binds the company that will see its points deducted. It could well be, however, that the crime is committed due to a specific individual behaviour of the person (who, for example, was distracted or did not carry out his work duties with care). In short, in the absence of organisational defects specific to the entity, it is not clear why the same should pay the consequences for the act of one of its employees, duly informed and trained.
Reading the provision raises many other questions that cannot be answered.
Could the penalized company take disciplinary action against its supervisor or manager? Would it gain any benefit in terms of restoring the points?
It is not clear what happens if, after the points have been deducted, the employer changes or the person responsible for the offence has been fired or, in any case, no longer has any relationship with the company. How will the latter be able to recover the points given that the law subordinates the reinstatement of the points to frequenting the person against whom the sanctioning measure was issued. The law does not establish how to overcome the impasse.
The ban on “operating on construction sites”, (whatever that means) for businesses or self-employed workers with fewer than fifteen points on their driving licence, could cause very serious corporate and employment effects that were probably not taken into account when drafting the decree-law. It is easy to imagine that transversal solutions will be adopted to avoid incurring the severe sanction of the law.
It remains to be clarified how contractual liability will be regulated for commitments already undertaken by the company, but not yet fulfilled before the impeding deduction of points from the driving licence.
