Lawyer Monthly Magazine - May 2019 Edition

was, right from the start, the legal qualification of gig workers and, in particular, of riders, given that they were contractually framed as self-employed workers. Reversing the point of view, a question arose: whether - and to what extent - food delivery companies, in their essence as digital platforms, should be considered, from a labour law standpoint, as mere principals or real employers. The Italian legal system states - unlike, for example, the Anglo- Saxon system – that there are only two different types of workers, those employed under article 2094 of the Civil Code and the self-employed under article 2222 et seq. of the Civil Code. Unquestionably, this second class comprises both hetero-organised collaborations under article 2 of Legislative Decree no. 81/2015 and the “coordinated and continuous” ones under article 409 point 3 of the Code of Civil Procedure. It would be out of the scope of this article to go through the abundant jurisprudence relating to the distinction between the two cases. It is sufficient enough to consider here that only the first type of workers – whose work activity is “directed” by the employer - are entitled to all the protections deriving fromover 50 years of legislative elaboration and, in particular, the first and fundamental labour protection of a proportionate and sufficient salary, in accordance with art. 36 of the Constitution; the second, on the other hand, is still almost non-existing (with the exception of some minimum social security protection). As it was logical, most of the claims made by the riders were aimed at obtaining recognition of their job as dependent employment rather than self- employment, with arguments aimed at demonstrating their submission to the typical managing, organisational, and disciplinary powers of the employer. The riders, in fact, claim that their performance is essentially determined by the manager of the food delivery service, which establishes the priority of orders to be met, the path to follow, the timing for delivery (managerial- organisational power), and they also complain about their submission to an evaluation by the algorithm in relation to their loyalty, speed and reliability, from which they would derive different priorities on the allocation of deliveries and availability times (organisational- disciplinary power). For the food delivery giants, on the other hand, the service is rendered by self-employed providers, given that the rider is not required to respect a certain hourly presence, nor to guarantee a certain minimum availability, just as there is no obligation to take charge of the deliveries reported by the system. In addition to these antithetical positions, subject to the recognition of the subordinate nature of the relationship, Thought Leader “ AS FAR AS SOCIAL SECURITY AND SAFETY AT WORK ISSUES ARE CONCERNED, IT IS ESSENTIAL FOR THE LEGISLATOR THEMSELVES TO INTERVENE ” the riders have invoked the application of Article 2 of Legislative Decree no. 81/2015. Under this provision, introduced in 2015 by the much-criticized Jobs Act, the application of the entire corpus of subordinate labour regulations has been imposed on those self-employed workers whose activity results in “exclusively personal, continuous work performance and whose execution methods are organised by the client also with reference to the time and place of work”. The so-called “hetero-organised” worker remains always formally and substantially a self-employed collaborator but, given the nature of their bond with the client (evidencing almost certain economic subjection), the Legislator considered it necessary for them to have access to the guarantees provided for employees. Is there any jurisprudence on the matter yet? Since last May, a total of three decisions of the Italian judiciary on the subject have been taken, two by first grade Courts (Turin and Milan, with judgments given respectively on 7 May 2018 and 10 September 2018) and one by the Court of Appeal of Turin (judgment of 11 January 2019). All three judgements excluded the existence of “hetero- direction” relative to the work performance of the riders by the various food delivery platforms, and, therefore, no dependent employment. The decisive factor was that the workers were free to make available the various work slots offered by the company and that, in the event of refusal (which could also be the case for the actual failed appearance), they were neither obliged to justify themselves nor to seek a replacement. However, if the judges at first instance agreed to reject the riders’ claims in their entirety, the Court of Appeal, while excluding the subordinate nature of the relationship, reformulated the previous decision of the Court of Turin by recognising the “hetero- organised” nature under Article 2 of Legislative Decree no. 81/2015 of the service provided by the riders. The coordination is found in the fact that it is the platform that determines the possible shift to be observed, the meeting points at the beginning of the shift, the maximum delivery times; this would put in place precisely the situation described by the aforementioned rule, which requires the application of the discipline of employment of collaborations for which the place and time of the service is coordinated by the client. In practice, this has led to the application, pursuant to art. 36 of the Constitution, of the minimum hourly wages set for the bellboys of the NCLA for Logistics Transport, with the consequent order that the food delivery platform pay the riders the relative differences in wages. MAY 2019 63 www. lawyer-monthly .com