Co.co.co.: collective agreement excludes the protection of employment

The Court of Rome, Labour Section, by ruling of 6 May 2019, has discussed hetero-organized contracts of collaboration, developing further the direction of the jurisprudence that arose in relation to art. 2 of Legislative Decree. 81/2015 on the occasion of the so-called ” Foodora case”.

The facts

The dispute in question concerned the collaboration between a company that provides call center services and its employees who, out of court, challenged the relevant contracts on the grounds that these were actually related to a permanent employment relationship.

In response to these appeals, the employer lodged a preventive action before the Court of Rome to establish the genuineness of the contracts in question. The collaborators joined the proceedings asking, principally, for an assessment of the employment relationship with the company and, alternatively, for the application of art. 2 of the Legislative Decree. 81/2015.

In this case, the collaborators’ activity consisted in the management of technical inefficiencies that may have been encountered by the users on their fixed and mobile telephone lines and/or on the modem. As part of the above activity, operators were free to assess when to render the service without any time constraints, communicating their availability. Where they were not available, they were not required to justify their absence and were not subject to any disciplinary sanction. At the same time, however, the company, through its team leaders, gave precise guidelines on the duration of calls, the manner in which these had to be carried out, etc.

The judge hearing the case, with the exception of the employment nature of the aforesaid collaborations, dwelt on the possibility that the de quo relations might fall within the scope of hetero-organized collaboration contracts (co.co.org.), i.e. a tertium genus between the subordinate employment relationship pursuant to Article 2094 of the Italian Civil Code and the coordinated and continuous collaboration (co.co.co.) provided for by Article 409, no. 3, of the Italian Civil Code.

Art. 2, paragraph 1 of Legislative Decree 81/2015

Art. 2, paragraph 1 of Legislative Decree 81/2015, identifies three elements that must exist at the same time in order for the employment relationship to be governed by the rules on the employment relationship.

First of all, the work must be “exclusively personal“, meaning that it is impossible to delegate tasks to another person to be carried out by workers hired and paid directly by the worker. In addition, these collaborations must be “continuous”. Continuity is to be understood both as “non-occasionality” and as the performance of activities that are (even if interspersed) repeated over time in order to satisfy the needs of the parties (on this point, refer to the judgment of the Court of Appeal of Turin 26/2019). Finally, the collaboration relationships must be concretized in work performances “whose execution modalities are organized by the client also with reference to the times and the place of work“, integrating in this manner the element of the so-called “collaboration”. “hetero-organization.” This element is more invasive than the simple “coordination” typical of co.co.co. but less invasive than the “hetero-direction” typical of the employment relationship.

The decision of the Court of First Instance

The Court stated that, in the case in question, the collaboration relationships between the parties involved all three of the elements listed above and that, therefore, these fell within the scope of the case provided for by Article 2, paragraph 1, of Legislative Decree 81/2015.

However, according to the Court, these were not subject to the rules on the employment relationship as a result of the hypothesis repealing under Article 2, paragraph 2, of Legislative Decree no 81/2015.

This occurs because the aforementioned provision sets forth that the provisions of paragraph 1 do not apply, among other things, with reference to “collaborations for which national collective agreements entered into by trade unions that are comparatively more representative at national level provide for specific rules regarding the economic and regulatory treatment, because of the particular production and organizational needs of the relevant sector.

In fact, according to the Court, a possibility of derogation existed in the case in question, as the OO.SS. (trade unions) had signed a collective agreement that specifically regulated the economic and regulatory treatment of employees. Therefore, in case of such an agreement, the protections of subordinate work could not be applied, since the social partners had already defined a set of rules for semi-subordinate employees.

In other words, according to the ruling in question, in case of collective agreements that provide for a specific discipline for co.co.org. (contract for freelance work coordinated by an employer), these do not change in the employment in an expansive manner, but remain within the scope of application of the semi-subordinate work.