The wide case law debate concerning the qualification of “riders” type of work
As happening all over the world in response to the modernisation of the employment relationship and to the birth of new professions (such as the “gig economy” ones), also in Italy a wide case law debate concerning the qualification of “riders” type of work, has taken place in the last few years.
In fact, just in the past year:
- the Court of Turin, with ruling no. 778/2018, stated that Foodora’s “riders” could not be qualified as a regular employees, because they had no obligation to perform their working activity, as they were free to deny their availability to do shifts;
- just a few months following, the Turin Court of Appeal, with ruling no. 26/2019, radically overturned its first instance judgement and recognized that Foodora’s “riders” belong to the so-called “etero-organizational” collaboration provided by article no. 2, Legislative Decree 81/2015 and shall be treated like employees and not like independent contractors.
Lazio Regional Law no. 4/2019
In this complex qualification debate concerning the best contractual figure characterizing the institute, with Regional Law no. 4, April 12, 2019 (published in the official regional bulletin on April 16, 2019), Region Lazio promoted the first legislative provisions in Italy concerning “protection and safety of digital workers”.
Law purposes and beneficiaries
The Regional Law does not define the specific contractual figure applicable to “riders”, but it is simply aimed at introducing rules guaranteeing “protection and safety” of “digital workers”.
The Law addresses to the “digital worker“, which is defined as the one who “regardless to the type and duration of the contractual relationship, offers the availability of his service to a company (the so-called “digital platform”), which organises and provides a service to third parties through the use of an electronic application, determining the characteristics and the price of the service”.
Health and Safety
The Regional Law at Article no. 3 introduces two specific obligations for “digital platforms” (i.e. companies):
- a specific obligation to train the “digital worker” in matters of health and safety at work, in particular, on “risks and damages deriving from the exercise of service activities and on prevention and protection procedures“;
- the duty to guarantee adequate “protection devices” in compliance with the regulations on health and safety at work, as well as to provide for the “maintenance costs” of the equipment and tools used for the service activity by “digital workers”.
Social security contribution and assistance
The Regional Law at Article no. 4 places on the “digital platform” the duty to implement an insurance in favor of the “digital worker” against accidents at work and occupational diseases, for damages caused to third parties during the performance of the service activity, as well as for the protection of maternity and paternity.
Remuneration and special allowances
According to Article no. 5, the “digital worker” remuneration:
- shall be calculated on an hourly basis;
- shall be in any case not lower than the minimum established by applicable NCBA;
- can be subject to an “increase” as provided by applicable NCBA.
Furthermore, in case of failure to perform the service activity not depending on a “cause attributable to the will of the digital worker“, the latter is entitled to a “reservation allowance” (the so-called “indennità di prenotazione”), to the extent determined by the applicable NCBA.
Finally, as a closure provision, the Regional law forbids the use of “piecework pay” (the so-called “remunerazione a cottimo”, which depends not on the time worked, but on the results and performance of the worker).
Information and transparency
At Article no. 6, the Regional Law introduces a mandatory “preventive and exhaustive information” to be provided to the “digital worker” on all various elements concerning the employment relationship (tasks, place of work, remuneration, risks and protection tools). Among these elements, stand out:
- the “methods through which the algorithm determines the meeting between demand and offer of the service” (i.e. in “food delivery” companies, the mechanism through which informatic applications collect client’s orders and distribute them to “riders”);
- the “reputational ratings” rules (i.e. how the company collects data concerning “digital workers” performances in rendering the service).
The Regional Law at Article no. 9 introduces a “digital portal”, which consists in a regional register of “digital workers” and “digital platforms”, which allows the access to projects and events promoted by the Region.
The infringement of the abovementioned obligations determines for the “digital platform” an administrative fine ranging between Euros 500 and 2.000, to be notified and collected through the methods that will be established with resolution of the Regional Council.
Despite many of its positive aims of introducing forms of protection for “riders” peculiar type of work, the Regional law could be subject to doubts of constitutional legitimacy.
In fact, the mentioned regional legislative provisions:
- could be deemed in violation to the strong division of legislative powers between State and Region provided by the Italian Constitution and
- could be considered in contradiction to the need of uniform treatment at national level, especially when it comes to individual rights to be guaranteed to an indefinite number of workers.
 This contractual figure consists in a “personal and continuous performance of work, organized by the employer also with reference to timings and place of work”. For its peculiar characterization, the institute constitutes a “tertium genus” which places between the “regular” employment relationship and pure self-employment. Because of the “organizational” role played by the employer, the employment regime applies to the mentioned relationship.