Riders are “hetero-organised” contractors

The Court of Appeal of Turin, with judgement No.26 filed on 11 January 2019 and published on 4 February, has partially accepted the appeal filed by 5 bike-delivery individuals (the so-called “riders”) of a well-known German food delivery company through a judgement of the Court of Turin (778/2018) that had failed to recognise the employment nature of the work relationships established as well as their classification in the category of “hetero-organised” cooperation according to Article 2 of Legislative Decree No. 81/2015.

Furthermore, it should be reminded just a few months from the date of ruling of the Court of Turin, that case law on the matter had ruled on a similar case, rejecting the appeal of a former rider who claimed to be under an employment relationship with another company operating in the distribution sector (Court of Milan, 10 September 2018 No. 2853).

The rule of the Court of Turin

In first instance, the riders had among other things claimed: (i) payment of the amounts due to them as wages and severance indemnity in force for the fifth level of the National Collective Bargaining Agreement (CCNL) in the Logistics sector or sixth level of the CCNL in the Services sector; (ii) the restoration of the employment relationship and payment of wages accrued from the date of dismissal to that of the actual reinstatement, upon verification of voiding, inefficacy or unlawfulness of the dismissal.

The judgement of the Court of Turin has, essentially, represented the first decision concerning the qualification of the work relationship of the riders in the era of the so-called “gig economy”.

According to the Court, their provision of services could not be categorised as employment relations as per Article 2094 of the Civil Code. This because:

• of the will of the parties that had signed coordinated and continuous cooperation agreements;
• the riders were not obligated to perform the work and the employer was not obligated to receive their work;
• there was no disciplinary power being exercised by the alleged employer towards the riders. The latter could, after having confirmed their availability to carry out the service, revoke it that is not perform it without being subjected to any disciplinary measure.

The Court of Turin did not even accept the claim, filed secondarily by the riders and related to the application of Art. 2 of Legislative Decree No. 81/2015, according to which “effective from 1 January 2016 the procedures pertaining to employment relationships apply also to business cooperation relationship that are exclusively personal and continuative and whose implementation methods are organised by the client also in terms of time and place of the workplace”.

In the opinion of the Court, said regulation is applicable only in those cases in which the worker is subjected to the organisational and directive power of the employer, since to this end it is not sufficient that said power is exercised exclusively for the time and place of the workplace.

The ruling of the Court of Appeal of Turin

The Court of Appeal of Turin, in light of the investigations carried out during the ruling of first instance deemed that:

• on the one end, the service provided by the riders could not be considered employment since they were free to provide their availability for the various shifts (slots) offered by the company. Essentially, the mandatory aspect of the service was not present;
• on the other end, it did not agree to what was stated by the Court of Turin regarding the non-applicability of Article 2 of Legislative Decree No. 81/2015 in the matter in question.

According to the Court of Appeal, cooperation as per the aforementioned article represent a third type of relationship “that falls between an employment relationship as defined by Article 2094 of the Civil Code and cooperation as established by Article 409 No. 3 of the Code of Civil Procedure, clearly to ensure greater protection to the new types of work, which as a consequence of the evolution and related increasingly fast introduction of recent technologies are taking place” (the so called “hetero-organised” cooperation).

The “hetero-organised” cooperations, in fact, while without implementing a hierarchy power (typical of employment) are characterised by the effective functional integration of the worker in the production-related organisation of the client. Specifically said organisation represents the element that goes beyond mere coordination as per Article 409 of the Code of Civil Procedure where the worker, while coordinating himself/herself with the client, organises independently his/her work activity.

In light of the above, the Court of Appeal deemed that the work provided by riders falls into the “hetero-organised” cooperations as per Article 2 of Legislative Decree No. 81/2015. This because: (i) the riders worked on the basis of “shifts” established by the client; (ii) the starting areas were defined by the client that notified to the riders the addresses where they would have had to perform the delivery; (iii) the delivery time were pre-established (30 minutes from time of pick up of the food); (iv) the riders had carried out their work for the client on a continuous basis.

From the aforementioned classification it results, according to the Court of Appeal, the extension to riders of the protections established for employment relationships (in particular regarding those concerning safety and hygiene, direct and deferred compensation, limits of time, vacation and social security contributions). In other words, the relationship while remaining independent technically is subject to the rules of the employment relationships.

Consequently, the Court of Appeal:

• has recognised to the riders, regarding work days and hours actually performed, the right to obtain the compensation established for employees and
• given that the defendant company was not registered to any entrepreneurial association participating to the National Collective Bargaining Agreement, that riders – in consideration of the activity and tasks carried out – be paid the remuneration established for employees of the fifth level of the freight, transport and forwarding CCNL, where messengers in charge of collection and delivery are listed.

The Court of Appeal, however, did not extend to the riders the dismissal regulations keeping into account, on the one hand, the lack of recognition of the employment work and on the other end, of the fact that the cooperation between riders and company was not subject to any interruption given the cooperation relationships stopped as part of their natural expiration.

Other News:

https://www.delucapartners.it/en/our-verdicts/2018/riders-are-self-employed-professionals/

https://www.delucapartners.it/en/news/2018/even-for-the-court-of-milan-food-riders-are-self-employed/

https://www.delucapartners.it/news/2018/una-prima-forma-di-contrattazione-collettiva-per-i-riders/