The contract in which the customer carries out a control system on the work activity with automated tools is unlawful

The Court of Padua, under ruling no. 550 of July 16, 2019, addressed the issue of employment based on the concept of hetero-direction of work in the light of technological evolution, outlining the criteria for identifying the actual employer.

Facts of the case

The case in question originates from the appeal filed by four employees of a Cooperative Company, who were contractors for the management of warehouse logistics services and who claimed that they had ascertained that they were executing their employment contract directly with the customer. The complainants’ duties were those of “pickers“, i.e. pickers and handlers of goods, in relation to which they were placed at the first level of the Multiservice National Collective Bargaining Agreement.

The employees’ request was based on the assumption that (i) all the means necessary for the execution of the contract were the property of the customer and (ii) the working instructions were issued directly by the customer, either through a mobile terminal available to the workers or, by voice, through a connection using a headset and a microphone. This control system allowed the customer company to know, in real time, the operations carried out by the individual and the duration of each operation.

The four workers also claimed that the work was controlled by the logistics manager of the customer and by one of its employees, who reprimanded workers who did not complete the minimum number of hourly operations required.

The workers in question claimed the application of the National Collective Bargaining Agreement of the services sector, applied by the customer, with classification at the 5th level, or the application of the Multiservices National Collective Bargaining Agreement of the contractor with classification at the 3rd level.

Said workers therefore demanded, that, primarily, the execution of an employment contract be ascertained directly with the customer, with the sentencing of the latter to pay the due wage differences and that, secondly, the defendant companies be sentenced to pay the wage differences in relation to the classification in the 3 level of the Multiservices National Collective Bargaining Agreement.

The decision of the Court of Padua

In the opinion of the Court of First Instance, the fact that the customer was in a position to process the data of the workers of third-party companies by means of tools potentially suitable for the remote control of workers is an argument for considering that it exercised the powers of the employer.

The customer, in fact, exercised a specific and timely control over the managers of the cooperative. This control was not limited to the preparation of general directives on the execution of the contract, but provided for the holding of two meetings a day in the presence of the workers and the warehouse manager. In addition, the Judge pointed out that it was suspected that there was a coincidence in time between the reminders that the owners of the cooperative addressed to the employees and the discussions they held with the person in charge of the customer.

The work organisation of the “pickers” was also fully automated and the software through which this automation was realised was exclusively available to the customer. The software recorded the individual operations of the workers, associating a code to the name that it recognised vocally.

Ultimately, the Court believed that the overall management of the company’s activities and the work management of the individual employees could be understood as a computerised relationship with the customer, leaving the cooperative with a residual function of control and disciplinary intervention, that was more or less solicited.

In light of the foregoing, the Court of Padua accepted the workers’ request, considering them employees of the customer, sentencing the latter (i) to classify them at the 5th level of the Services Sector National Collective Bargaining Agreement, (ii) to pay each of them the relative salary differences and (iii) to pay the social security and welfare contributions due on the basis of this contract.