With another summer approaching, the political and legislative debate concerning the need to update and/or clarify employment laws in Italy relating to Gig Economy workers (See Blog post of July 20 2018) is still hot.
In 2018, six people who worked for a food delivery company claimed, before the Court of Turin, that they should be considered as “regular, subordinate employees.” The Court of Turin rejected their claims on the basis that their contractual relationship could not be qualified as “regular, subordinate employment” under the relevant laws: They were at all times free to refuse work, or be unavailable to work, therefore having no obligation at any time to perform work.
The decision of the Court of Turin was brought before the Court of Appeal of Turin, which, on January 11, 2019, overturned the lower court decision and made a clear statement regarding this special category of worker in the Gig Economy: They should not be treated a priori as independent contractors.
In making its decision, the Court of Appeal of Turin referred to Art. 2 of the Jobs Act 2015, which states that when the contractual relationship between an individual and the company for which he or she works is characterised by a “personal and continuous performance of work, organised by the employer also with reference to timings and place of work,” then the individual enjoys the rights of a subordinate employee. The Court of Appeal of Turin based its decision on the fact that since the employer plays a fundamental role in organising the work of the individual, the relationship between the two falls within the established subordinate employment relationship regime. As a result, the Court of Appeal of Turin established that the individuals had the right to claim certain remuneration and treatment (such as paid holidays, sick leave and the so-called 13th month salary at year end), as provided for by the National Collective Bargaining Agreement of the Delivery and Logistics’ Sector.
The decision of the Court of Appeal of Turin reinforced the trend to grant Gig Economy workers the rights of subordinate employees, a trend which dates back to 2015 when the Italian Jobs Act was passed. Several unanswered questions remain, including whether, under the current laws and regulations, these individuals
- have the right to certain protections granted to subordinate employees regarding unfair dismissal;
- have the right to be paid for the waiting time between one delivery and another, and if so, how and with what, if any, limitations;
- who have the option not to answer a call should be treated differently to those who do not have that option.
Some of these questions might be answered by looking back to the Biagi Law of 2003, arguably way ahead of its time, which introduced a type of intermittent employment contract to cover work relationships characterised by discontinuity and other features that we commonly see in Gig Economy work relationships. However, considering that since its passage more than 15 years ago, the Biagi Law has been repealed, reintroduced, remodeled and watered-down, and is today subject to very strict limitations, it may not be a particularly useful reference to resolve the questions regarding the treatment of Gig Economy workers.
One thing is clear. The debate relating to the treatment of Gig Economy workers continues.