Fulvio Mannino
Doctorando Universidad de Urbino / Universidad de Sevilla
Nota: esta entrada, por su longitud, se publicada en dos partes
4. A possible Italian response to the qualifying question.
4.1. The approach of the Italian legal system to the problem of rider qualification.
The problem of qualification of workers on the digital platform has also been addressed in the Italian legal system, in the jurisprudential and legislative fields.
Preliminarily, it should be observed that a social reality in constant and rapid change and the presence of diversified organizational models conditioned by the development of new technologies was followed by an adaptation by the legislator, who attempted to set socially consolidated rules, but elusive with respect to the traditional legal schemes (autonomy and subordination).In this regard, already during the 1990s, a debate had arisen aimed at hypothesizing regulatory models favorable to recognizing platform workers the labor guarantees (typical of subordination) in a transversal manner, regardless of the contractual framework.
This on the assumption that subordinate work has an axiological meaning, based on the socio-economic weakness with which the worker expresses his personality in society.
This situation of weakness goes beyond the technical-functional coordinates with which the service is carried out in the service of the client-employer and rather concerns the fact that the worker lacks the means of production to be able to emancipate himself from the organization of others[66].Having said this, consider that in the Italian context, already in 2016, a fairly high self-employment rate (21%) was estimated among European countries[67], given that the category of self-employed workers also included, to some extent, those workers who, from an economic point of view, depend on an employer: these are the so-called «para-subordinate» workers, whose regulation can be found in special legislation.However, it must be acknowledged that, due to the low cost of labour, the contracts with which one was «hired» under the para-subordination regime were often used (fictitiously) to replace the traditional ones, so much so that, starting from 2003, a restrictive intervention by the legislator[68].It is precisely in this context that important legislative intervention takes place, culminating with the enactment of Legislative Decree no. 81/2015, whose art. 2, modified by the subsequent law 128/2019, identifies the criterion identifying the relationship (or of the applicable discipline)[69] in the heter-organisation, relegating, however, the heter-management, through the elimination from the text of the art. 2 of the reference to the organization of times and places of work, in the world of «classical» subordination[70].Well, the sentences that have dealt with the issue have preliminarily ruled on a particular provision, namely art. 2 Legislative Decree no. 81/2015 (before its modification by Law 128/2019), the first paragraph of which, in its original formulation, provided (in the intentions of the Legislator) the applicability of the subordination regulation also with regard to those «relationships of collaboration which takes the form of exclusively personal, continuous work services whose methods of execution are organized by the client also with reference to the times and place of work«, which, as underlined by the Court of Appeal in the well-known Foodora case, can be attributed in the context of autonomy.
This gave rise to a lively debate about the collaboration pursuant to art. 2, where attention was focused, in particular, on two issues considered of great importance: its traceability to the area of the employment relationship and its relationship with the coordinated and continuous collaboration envisaged by the art. 409, n. 3, c.p.c., modified by art. 15 of Law 81/2017[71].On the first question, there are those who believe that the ambiguity present in the original wording of the art. 2 leads to considering hetero-organized collaboration as subordinate (given the presence of indices such as the exclusivity of personal performance, its continuity and the organization of the methods of execution and control also over times and places of work)[72] while, for on the other hand, there are those who see in this provision a presumption of subordination (absolute or relative)[73].There has even been discussion regarding the configurability of the aforementioned provision, as a “disciplinary rule”, having the sole effect (without, therefore, affecting the formal legal qualification in the sense of autonomy, despite the fact that the service is simply organized by the client, without claims coordination or hetero-management) to extend the discipline relating to the employment relationship to all those self-employed workers who stand out for a certain degree of economic[74] or organizational[75] weakness, as well as for a sort of morphological contiguity to the employment itself[76], or as «specific rule», which, instead, would have the effect of extending, in some way, the notion of subordinate work, intervening indirectly on the art. 2094 Civil Code.[77], thus giving rise to the notion of attenuated subordination[78] (a concept widely analyzed by jurisprudence, which, in all those disputes in which work activities of limited professional content were discussed, or, alternatively, of high professionalism, has focused attention, not on the exercise of managerial power, but rather on that relating to inclusion in the organization, rather than the investigation into the concrete exercise of managerial power[79]).According to another opinion, lastly, art. 2 would represent a sort of «apparent rule»[80], as it has no regulatory effectiveness of its own, as it would not introduce any innovative element with respect to subordination, highlighting, indeed, how the hetero-organization referred to in art. 2 has always coincided with external management, already provided for in the art. 2094 c.c.
Subsequently, the amendment introduced by Law 128/2029 (converting to Legislative Decree 101/2019) replaced the adverb «exclusively» with «predominantly«, also eliminating the words «with reference to the times and place of work» and adding a second period which states that «the provisions of this paragraph apply even if the methods of execution of the service are organized through platforms, including digital ones«[81].The concept of personal prevalence of the service introduced by the aforementioned amendment (and here the second question is addressed) has led to the art. 2 in the area of self-employment, confirming, therefore, that hetero-organization is that element that allows such collaboration to be distinguished from coordinated and continuous collaboration pursuant to art. 409.In fact, while in the latter hypothesis, the management of the methods through which the coordinated and continuous collaborator must adapt to the client’s organization is the prerogative of the former, presupposing a preliminary consensual agreement between the parties regarding the expected results, in the former hypothesis, however, the client, far from limiting himself to providing mere indications on the results to be achieved, also gives the inputs induced by his own organization within which the worker is inserted, unilaterally organizing the methods through which the worker must carry out the activity[82].Furthermore, article 1 of Law no. 128/2019, through the introduction of Chapter V-bis in Legislative Decree no. 81/2015, specific mandatory provisions in pejus (aimed at guaranteeing minimum levels of protection) in favor of self-employed workers who carry out goods delivery activities on behalf of others in urban areas, using bicycles or motor vehicles through digital platforms.
In particular, while the first paragraph of article 47-bis, referred to in the aforementioned Chapter, limits the application of these protections to self-employed workers who deliver goods in urban areas on bicycles, excluding those who use a car, the second paragraph is preparing to define digital platforms as programs and procedures used by the client for the delivery of goods, setting the compensation and determining the methods of carrying out the service.
However, numerous contradictions have emerged between the minimum protections provided for self-employed riders and the art. 2 of Legislative Decree 81/2015, since the difference between those who carry out the same activity through collaboration organized by the client and those who, instead, operate as self-employed workers is complicated by the continuous nature of the former and the occasional nature of the latter[83]. There are those who doubt how the wording of the second paragraph above is able to qualify as self-employed workers those whose work is determined by the client company via the platform[84], just as the hypothesis regarding the residual nature of Chapter V-bis is raised with respect to the regulations provided for by the art. 2, first paragraph, of Legislative Decree no. 81/2015. These are issues that raise several doubts on how to distinguish self-employed riders, making the judge’s intervention in this regard quite difficult[85].For the sake of completeness, a further and more recent regulatory intervention on the issue of rider protection lies in Legislative Decree no. 104/2022, implementing European Directive 2019/1152, relating to transparent and predictable working conditions in the European Union.T
he aforementioned decree applies to all workers who establish a working relationship with an employer established in Italy, regardless of the form, duration and sector of the working relationship.
It aims to guarantee certain minimum rights and principles, including the right to receive written information on the essential conditions of the employment relationship within seven days of the start of the service, to request a change in the form of the employment relationship in case of execution continuous and predictable performance, to access professional training and social protection, to balance professional and private life, through flexibility of working hours and the possibility of refusing, limiting or receiving compensation for services outside of working hours established jobs.
The decree also provides for sanctions, which translate into a fine of 500 euros and imprisonment of up to two years, which affect those employers who do not comply with the provisions laid down[86].Furthermore, in 2019, the Lazio region adopted law 4/2019, which provides specific rights in favor of «digital workers«.
In essence, this law obliges the platforms to provide training regarding safety at work and protective equipment, as well as the stipulation of insurance against accidents at work and other coverage, establishes the prohibition of piecework wages and establishes compliance with the minimum wage established by national collective agreements.
Digital workers must be, among other things, informed about working conditions and how the platforms’ algorithms work.
Also in Piedmont a legislative proposal was presented in 2018 (approved unanimously by the Regional Council on 22 January 2019) which aims to expand the rights of the aforementioned workers, with the guarantee of providing information on working conditions, fair wages, ban piece rate pay, the right for unions to negotiate on algorithms, the right to disconnect, rules on working hours and a ban on discrimination. Furthermore, the proposal tends to extend the definition of an employment contract, classifying all those who receive orders via an app or other program as subordinate[87].
4.2. The art. 2 of Legislative Decree no. 81/2015 under scrutiny by jurisprudence.
The analysis of the regulatory framework just carried out must necessarily be integrated with the path taken by jurisprudence regarding the legal qualification of the riders’ relationship, assuming that it is the art. 2 of the legislative decree n. 81/2015, and the qualifying issue of riders, although examined from a doctrinal and regulatory point of view, have generated an almost limited number of sentences, among which those relating to the well-known Foodora case and the sentence of the Court of Palermo stand out.
In the Foodora case, the Court of Turin[88] rejected the classification of the relationship as subordinate work (considering art. 2 as an «apparent rule», considering, in the judge’s opinion, its scope of application to be narrower than that of art. 2094 of the Civil Code[89]) emphasizing the autonomy of the riders, on the basis of their freedom to apply or not in relation to a specific race, in accordance with their own life needs; there is, in fact, the absence of the obligation to make oneself available[90], via the App managed by the platform to manage the riders’ shifts, and, consequently, to carry out the work performance, thus preventing the platform from exercise typical employer powers (managerial/organisational, control[91] and disciplinary[92]).
The Court of Appeal of Turin[93], on the contrary, established the applicability of the art. 2 of Legislative Decree no. 81/2015, defining this provision as a «tertium genus«, located between subordinate work (from which it is detached given the lack of an obligation on the worker to carry out the service) and coordinated and continuous collaborations (where the service is based on an agreement between the parties and on the autonomous execution of the work activity), thus interpreting hetero-organization as a concept of functional integration in the client’s production organization[94] and enhancing the function of protecting the norm and of the particular characteristics of the (constantly changing) working relationships that it is called upon to regulate.In the same ruling, the Court underlines the technically autonomous nature of the employment relationship[95], without prejudice to the application, in favor of such workers, of the regulation of subordinate work for «what concerns safety and hygiene, direct remuneration, time limits, holidays and social security ”.This is a decision that is not free from criticism from commentators, due to its ambiguity[96] since from the letter of the rule it does not seem possible to deduce the exclusion of some institutes to the advantage of others, but the full application of the protections of subordinate work.
The Foodora affair reaches its final point with the ruling of the Supreme Court n. 1663/2020[97], which once again addresses the issue linked to the interpretation of the art. 2 on hetero-organized collaborations. The Court of Cassation confirmed the application of the art. 2, first paragraph, of Legislative Decree no. 81/2015 to riders, canceling, however, the classification of hetero-organized collaborations as tertium genus, supporting the extension, as already designed by the Legislator himself, of the regulation of subordinate work to such collaborators[98], from which the remedial approach derives and anti-evasion of the art. 2, aimed at preventing potential abuses in collaboration contracts pursuant to art. 409, n. 3, c.p.c. seen previously[99].
Consistent with this approach, it is clear how the art. 2 should be interpreted as a «discipline rule», given that the legislator would have simply valorized some indices, such as personality, continuity, hetero-organization[100], suitable to allow the application of the discipline of subordination to those collaborators who are functionally inserted in the organization of the client’s company (therefore hetero-organized), without there being a consensual agreement regarding the methods of coordination with the latter, unlike what happens, however, in coordinated and continuous collaborations pursuant to art. 409.
From this it follows that the autonomy regime recognizable in the case described by the art. 2 is limited to the genetic phase of the agreement (given the worker’s right to oblige himself or not to carry out the service), but not in the functional phase, that of execution of the relationship, where, in this case, the methods with which the worker performs the service is unilaterally determined by the platform via the App present on the provider’s smartphone[101].Lastly, the Supreme Court criticized the selective interpretation of the Court of Appeal, asserting that the art. 2 does not exclude the integral application of the discipline of subordinate work to hetero-organized collaborations.
However, some ambiguity occurred when the Court mentioned the possibility that the full application of the subordinate regulation might be «ontologically incompatible» with some regular situations, which do not fall within the scope of the art. 2094 of the civil code[102].Such an assumption could open the door to a selective application of protections, excluding some rules strictly linked to subordinate work.
Furthermore, the risk of an «uncontrollable imperative subjectivism»[103] could emerge when judges are called upon to evaluate on a case-by-case basis the compatibility of labor institutions with the autonomous nature of the relationship, implying exclusions of protections linked to subordinate work and rules not yet defined. by legislation or jurisprudence, as in the case of social security protection.
A change in perspective occurred, on a qualification level, with the ruling of the Court of Palermo[104] (path followed by the Court of Turin with the sentence of 18 november 2021[105] and by the Court of Milan with sentence no 1018 of 20 april 2022[106]), which, unlike the approach provided by the Court of Cassation in the Foodora case, classified the riders’ employment relationships as subordinate workers.
A similar decision was issued in the context of a case involving the Foodinho platform (operating through the Glovo brand), where the Court recognized the rider’s subordination on the basis of detailed analyzes of the executive phase of the relationship, underlining the constant management by of the platform through algorithms.
The Palermo judge, in particular, criticized the approach of the Court of Turin in the Foodora case, arguing that the executive phase of the relationship should be preferred rather than the genetic one[107], given the emergence of limitations imposed by the platform on the choice of shifts and contesting the effective freedom of choice of shifts by the riders, as it is conditioned by the excellence score assigned by the platform[108].
The judge, in fact, applied the traditional concept of external direction referred to in art. 2094 Civil Code, without considering the art. 2 of Legislative Decree no. 81/2015 or the most recent legislation in Chapter V-bis[109].
Furthermore, the sentence applied the Tertiary, Distribution and Services CCNL, recognizing the duties of cyclofactor and deriving the salary differences from them. Furthermore, the disconnection of the rider’s account was classified as a retaliatory dismissal, considering the punitive intent on the part of the platform to be plausible.
In conclusion, this decision represents a pioneering attempt to qualify riders’ employment relationships as subordinate, highlighting the ability of traditional principles of labor law to adapt to new contractual schemes, despite the use of different algorithms and working methods[110].
5. Conclusions.
In light of the considerations made so far, it is reasonable to conclude that the evolution of the platform economy, driven by technological innovations, has profoundly influenced the socio-economic structure of society, requiring an adequate and satisfactory response from labor law, whose role consists precisely in ascertaining the legal nature of the relationship between platform and providers, guaranteeing adequate protection for those who perform work within the platform economy.
Jurisprudence, in particular, especially at European level, is progressively moving towards the recognition of dependence, focusing attention on the execution phase of the employment relationship.
The key criterion, in fact, is to evaluate whether the methods of carrying out the service are unilaterally determined by the digital platform, with the consequence that the platform itself could be qualified as an employer, which has significant repercussions in terms of duties and responsibilities. towards workers.
Such an orientation underlines the need for updated and specific legislation to address the dynamics of the platform economy, therefore requiring the effort to outline clear and adaptable definitions to the different categories of workers, recognizing the peculiarities of this sector without compromising fundamental rights.
Looking to the future, it is also crucial to promote social dialogue between all interested parties, given that the involvement of employers, workers and trade union representatives can well contribute to developing balanced solutions that respond to emerging needs and guarantee fair and dignified for all workers in the platform economy.
In conclusion, evolutionary dynamics require a balanced approach so that technological innovation does not compromise workers’ rights.
The orientation of the jurisprudence provides, as we have seen in the course of this discussion, an important guide, but the process of regulatory adaptation must proceed in a careful and timely manner to adequately respond to the challenges emerging in the increasingly complex landscape of the platform economy.
It is important, therefore, that in an era of rapid economic and technological transformation, labor justice must act as a bulwark, ensuring that innovations are not a pretext for eroding the fundamental rights of workers, but rather an engine for building a fairer, more inclusive and sustainable working future.
