As happening all over the world in response to the modernization 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.
Meanwhile, in September 2020, was signed the NCA for riders, between the Employer’s TU, Assodelivery and UGL Rider, the employee’s trade union.
Following the signing of the mentioned NCBA, Deliveroo Italy dismissed all the riders not willing to adhere to the new NCBA: i.e. they could sign the new employment contract with Deliveroo Italy subject to the signing to the new collaboration contract applying the newly signed NCBA.
3 different Trade Unions part of CGIL (one of the 3 biggest TUs in Italy) filed a claim for antitrade unions behaviour against Deliveroo Italy before the Court in Florence, claiming the breach of the information and consultation rights with regard to collective redundancies, since they were not involved in the multiple dimissals of the riders.
The Court of Florence with its decision dated February 9th 2021 rejected the claim of the Trade Unions declaring that they were not entitled to propose a claim for antitrade unions behaviour pursuant to Art. 28 of the Workers’Statute.
The decision of the Court of Florence is grounded on the fact the mentioned article of the Workers’ Statute is a processual provision which legitimates the TUs to claim before the Court and applies only to disputes – for anti trade behaviour- developing within the frame of an employment relationships.
Therefore, according to the constant case law, such provision gives an action with regard to employment relationships but does not grant an action right to TUs representing para-subordinate employees / collaborators and/or freelancers.
As pointed out by the Court, with regard to the riders, pursuant to Art. 2 Legislative Decree 81/2015, they are granted the same provisions and conditions (from a legal and an economic perspective) applied to employment relationship, despite the fact that they remain autonomous workers/collaborators.
According to the decision of the Court of Florence, the aim of the provision above is to grant the individuals the same protection of an employment relationship , but not to extend the application of Art. 28 of the Workers’ Statute to the TU representing the riders.
This is the first decision on this topic and can be considered an icebreaker. We will see if the other Courts in Italy will follow Firence and if such decision will land before the Supreme Court of Cassation.
For more information on these articles or any other issues involving labour and employment matters in Italy, please contact Michela Bani (Partner) of LabLaw at firstname.lastname@example.org or visit www.lablaw.com.