Lawyer Monthly Magazine - May 2019 Edition

MAY 2019 64 Thought Leader www. lawyer-monthly .com A further solution (even if not feasible, at the moment, in Italy, given the position of social security institutions) could be the Belgian one, where some digital platforms finance the so-called umbrella companies, which are entrusted with the task of guaranteeing to registered workers a minimum adequate salary, but also a social security protection and contributions for the repair of bicycles and smartphones. However, time flies: what will happen - presumably not soon - when home delivery services are entrusted to drones? As it is increasingly the case, the pace of progress risks making certain issues old even before they can be governed by the respective dedicated regulations. Perhaps we should resell the classic dichotomy between self- employment and employment to start discussing minimum worker protection, which must be guaranteed to all regardless of the type of contract. LM is substantially unknown even to national top management (who, when questioned as witnesses, have always provided partial answers when they have not declared that they do not know). As regards to this second aspect, on the other hand, it is difficult at the moment to reach an efficient solution by purely legislative means. The failure of mediation between the Ministry of Labour and the Riders Union of Bologna (the first Italian “union” of riders) is proof of this in Italy. The agreement is also opposed by the digital platforms which, for their part, argue that a possible and indiscriminate absorption of all riders as employees would lead to an excessive increase in the cost of the service for consumers, such that it would be the same food delivery services to disappear and, with them, the jobs produced. With regard to remuneration, in addition to the jurisprudential openings mentioned above, it is considered that an effective option could be the intervention of the social partners and collective bargaining, albeit in the context of independent collaboration (as, moreover, has already happened in the field of market research with the Collective Agreement for the Regulation of Exclusively Personal Collaborations in the Sector of Market Research of 24 July 2017). As far as social security and safety at work issues are concerned, it is essential for the legislator themselves to intervene - which has been announced several times - in order to prevent a massive number of lawsuits, which would be to the detriment of both social security institutions and companies. January 2019, extended these conclusions also to the drivers of UBER (defined by the EU Court of Justice in its judgment of 20 December 2017 as an actual service in the transport industry under EU law), thus creating a new orientation of the French case law that is ever more oriented to consider the nature of subordination of the type of work of gig workers. Moreover, similar conclusions have recently been reached by the Spanish and Dutch courts (the latter overturning previous decisions to the contrary), while in England the opposite approach still prevails. What the new frontier may be There are basically two knots to be untied: on the one hand, the transparency of the algorithm that governs the entrustments and, on the other hand, the possibility of finding a compromise between the positions of the riders and the digital platforms. If the algorithm modified the preferences for the distribution of assignments in the event of behaviour that was not fully compliant with the worker’s requirements - or perhaps even on the basis of user evaluations, which were certainly not a fully “objective” evaluation tool - its disciplinary nature would, in fact, be evident. However, the algorithm remains inaccessible to courtrooms, also because it It is interesting to note that, according to the Court, the aforementioned rule was introduced by the Legislator precisely to “ensure greater protection for the new types of work that, as a result of the evolution and the increasingly accelerated introduction of recent technologies, are developing”: the gig workers, in other words. Have there been any judicial interventions in Europe too? Over the past two years, the issue of gig workers has been brought to Court in almost all major European countries, including Spain, France, the Netherlands and England, and the conclusions were not always consistent with each other. The ruling of 28 November 2018 of the French Supreme Court is worth to be mentioned, which, reforming the statement of the court of appeal (which had expressed itself in similar terms to the Italian courts), found a constraint of subordination, instead, binding the rider to the digital platform (of food delivery in the specific case); according to the French courts, the provider would be able to constantly monitor the position of the worker, thus controlling the performance, and could also deactivate the account, thus exercising a kind of disciplinary power. The French Supreme Court on 10 “ 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. ” Avv Luca Daffra Studio Ichino Avvocato Sergio Passerini