The riders employed by Foodora are a new type of workers who perform “hetero-organized” work to which the discipline of the subordinate employment relationship applies.
The case decided by the Court of Appeal of Turin (by judgment no. 26 of 4-2-2019, which partially reformed judgment no. 778/2018 by the Court of First Instance ) has brought up to date the issues relating to the qualification of employment relationships and the rules applicable to them with reference to those cases that are increasingly emerging in the current era, where new forms of work arise, often managed through technological platforms or otherwise with the help of technological and electronic tools.
The case decided by the Court of Turin concerned some riders of a well-known company that makes home deliveries (Foodora), who had signed with the company “coordinated and continuous collaboration” agreements, a type of self-employed work agreement under Italian law. The workers claimed the subordinate nature of the employment relationship, thus pleading their rights for salary balance, protection against dismissal, social security coverage, etc.
The work relationship was done through a multimedia platform and an application for smartphones. The company published in the “app” weekly “slots” that is the time slots with an indication of the number of riders needed to cover each shift. Each rider could give his or her own availability, i.e. apply for a specific slot, but he or she was not obliged to do so, being able to decide according to his or her personal needs. Once the rider had applied, he or she was confirmed by the head of the fleet, and was, hence, on duty. At the shift start time, then, the rider had to go to one of the predefined starting zones, activate the geolocation device so as to receive on the app the notification of the order with the address of the restaurant and the recipient. The delivery was expected within 30 minutes of the indicated time for the collection of food, under a penalty of 15 euros.
The Court of First Instance held that the employment relationship had been properly established in the form of coordinated and continuous cooperation.
The Court of Appeal partially reformed the decision, considering the qualification of the employment relationship as self-employed to be correct, but accepted the workers’ request for the application of Article 2 of Legislative Decree no. 81 of 15 June 2015, which states as follows: “as from 1 January 2016, the regulation of the employment relationship shall also apply to the employment relationships that take the form of exclusively personal, continuous employment and whose execution methods are organized by the client also with reference to the time and place of work“. The Court of Appeal held that, for the period in which the relationships had been implemented, the workers were entitled to be paid the amount accrued in relation to the work carried out on the basis of the direct, indirect and deferred remuneration established by the NCLA for employees in the logistics and freight transport sector, thus treating them as employees to all intents and purposes. The Court rejected, however, the claims based on hypothetical dismissals, considering that these implied subordination and that, in any case, there was no evidence of the interruption of the relationships.
The case, which has had a wide resonance in specialized and non-specialized publications, offers us the starting point for some considerations on the theme of the qualification of the employment relationship, taking into account the new tools and working methods that have arisen in the current socio-economic context.
For a long time we have been accustomed to subdividing the employment contract into three main categories: subordinate employment in a company, governed by article 2094 of the Civil Code, whose characteristic features are (perhaps we should say were) the physical inclusion of the employee in the premises of the company and the subjection to the power of management and control of the employer (the so-called “hetero-direction” of the work); ii) self-employment governed by article 2222 of the Civil Code, characterized by the obligation to perform a work or a service, mainly personally, but without the constraint of subordination (i.e. in the absence of that requirement of the hetero-direction of the work that is typical of a subordinate work); iii) the contract of coordinated and continuous collaboration (also called “parasubordinate” for its affinities with the subordinate work), rendered mostly personally, which properly falls within the genus of self-employment, has no other substantial definition than the one provided in article 409, point no. 3, of the Code of Civil Procedure, which refers to a collaboration relationship taking the form of a continuous and coordinated work, rendered mostly personally, even if not of a subordinate nature (in fact, article 15, paragraph 1, letter e), of Law no. 81 of 22/5/2017, amended the said article 409 providing that “a collaboration is understood as coordinated even when, in compliance with the coordination procedures established by mutual agreement between the parties, the collaborator organizes the work independently“). These are the so-called “co.co.co” in Italian.
Coordinated and continuous collaborations, therefore, has some elements of affinity with subordinate work, such as the fact that the service is rendered personally, and its repetition within the contractual relationship (continuity), while the aspect of the hetero-direction of the service is absent, since there is a simple “coordination” with the client.
Following the widespread use of coordinated and continuous collaboration in circumvention of labour law, which occurred massively in the ’80s and ’90s, the “Biagi Law” of 2003 (Legislative Decree no. 276 of 10/9/2003, ) “stopped” the use of co.co.co. providing (in its art. 61) that a work agreement, in order to be considered genuinely with a self-employed worker, had to be ascribable to “one or more specific projects determined by the client and managed autonomously by the collaborator“; otherwise (art. 69) they were considered subordinate employment relationships of indefinite duration from the commencing date of the relationship. The “project contract” was thus included within the legal types of work agreements, despite the difficulty of identifying exactly what was a “project”.
Legislative Decree no. 81 of 15 June 2015 (Italian Jobs Act) has, among other things, also addressed the “co.co.co. contracts”, on the one hand (in its art. 52) by repealing art. 61 of Legislative Decree 276/2003 (reagrding the so-called “project contract”, which remains in force only for the “regulation of contracts already in place at the date of entry into force” of the decree), substantially returning to “liberalize” co.co.co. contracts and, on the other hand (in its art. 2) extending, however, the discipline of the subordinate employment relationship to those autonomous collaborations with certain elements, namely: i) a purely personal work performance (and therefore not only “mostly” personal; ii) the continuity of the service; iii) the “hetero-organization”, that is, a service “the methods of execution of which are organized by the client also with reference to the time and place of work“.
This provision poses some problems. First of all, the question arises as to what characteristics a work performance should have in order to be considered as self-employment, when it is continuous, exclusively personal and hetero-organized (also with reference to times and places of work). In other words, if a service has these characteristics, shouldn’t it be considered subordinate rather than self-employed work?
Secondly, it is necessary to clarify what the rule means when it says that the regulation of the subordinate employment relationship “applies”: in what respects and with what consequences?
The Court of Appeal if Turin interpreted the rule by rejecting the qualification of the relationship of the riders as subordinate on the basis of two main elements: 1. the fact that the workers were not obliged to render the work but could freely choose whether or not to be available in the slots proposed by the client (the Court of Appeal held, in this regard, that not only the manner of carrying out the work, but also the existence of an “obligation to work” is relevant in a subordinate employment relationship); 2. non-existence of any disciplinary power on the workers (the investigation revealed that the company had never taken disciplinary action against the workers, even if they had withdrawn thair availablity after giving it or had not appeared to render the service). The duration of work (on average less than 20 hours per week) was also considered to be “incompatible” with an alleged subordinate nature of the employment relationships.
According to the Court, the 2015 labour reform identified a third type of relationship (art. 2 of Legislative Decree 81/2015 is headed: “collaborations organized by the client“) in addition to the subordinate employment relationship referred to in art. 2094 of Italian Civil Code and the collaboration provided by art. 409, no. 3, of the Code of Civil Procedure. (co.co.co.): tertium genus which, in the Court’s view, the law-makers created to provide wider protection for new types of work relationships that are now possibile thanks to new technologies.
In this tertium genus of relationship, the client holds the power of hetero-organisation of the performance in terms of the methods of execution and of the times and places of work, but lacks the full hetero-direction typical of subordinate work since there is no hierarchical/disciplinary power. According to the Court, the hetero-organisation referred to in art. 2 of Legislative Decree no. 81/2015 is something more and beyond the simple coordination referred to in art. 409 of the Code of Civil Procedure, which requires a functional integration of the worker in the productive organisation of the client.
In the case submitted for its examination, the Court has detected the requirement of the hetero-organisation of the service, i) in the fact that the riders worked on the basis of a shift, in areas and on routes established by the client; ii) in the fact that the delivery times were set by the client with reference at least to the maximum limits of delivery (30 minutes from taking charge of the product).
However, in the absence of the requirement of obligation to render the work performance, in the absence of any disciplinary power and in the absence of a significant commitment in terms of time of employees (not exceeding an average of 20 hours per week), the Court found these features incompatible with employment, but sufficient to require the protection provided by Article 2 of Legislative Decree 81/2015.
The Court’s conclusion is that the hetero-organised worker remains self-employed, but as regards safety and hygiene, direct and deferred remuneration (and hence occupational classification), working time limits, leave and social security, the relationship is regulated in the same way as an employment relationship for the period in which it goes on.
On the other hand, it is not very clear why the Court found that the rules on dismissals did not apply and settled the matter by stating: ‘the claim is to be rejected on the ground that there is no subordination‘. In fact, the absence of the requirement of subordination should not have been a reason to disapply the rules limiting dismissals, given that Article 2 of Legislative Decree 81/2015 does not exclude the latter from those that apply to hetero-organized relationships that is to say, relationships to which, precisely, “the rules of the subordinate employment relationship apply“. In another passage, the judgment reads that there was no interruption, by the Company, of the relationships before their natural expiry and therefore the reason for the non-application of the discipline of dismissals would seem to be attributable to a factual element and not to a law-related assessment.
Following the orientation of the Court , we would have in our system (at this point, let me say) a quartum genus of relationship, alongside subordinate work under article 2094 of the Civil Code, self-employment under art. 2222 of the Civil Code, the co.co.co. contract pursuant to art. 409, no. 3, of the Code of Civil Procedure. This would be the “hetero-organized” co.co.co. relationship pursuant to art. 2 of Legislative Decree no. 81 of 15 June 2015, which would trigger the application of the rules on the employment relationship.