Riders: Ministry of Labour clarifications

Following what was announced to the social partners at the meeting held on 18 November 2020, the Ministry of Labour issued the following 19 November Circular no. 17 explaining the regulations governing digital platforms’ delivery cyclists (riders).

The Ministry outlined the essential features of Legislative Decree of 15 June 2015, no. 81, as amended and integrated by Law no. 128 of 2 November 2019, converting Legislative Decree no. 101/2019. The introduction specified that this legislation was addressed to two different groups of delivery persons: those who work with digital platforms based on a continuous and coordinated service contract and those who were self-employed.

For those with a continuous and coordinated service contract, the circular clarified that the existence of elements attesting to the delivery person work organisation based on multiple factors make the mechanism referred to art. 2 of Legislative Decree 81/2015 (as interpreted by the Court of Cassation’s ruling 1663/2020) applicable. This means employment rules apply to this type of work. This does not apply if there are collective agreements entered into by trade unions that are comparatively more representative nationally and, due to the relevant sector’s special production and organisational needs, provide compensation and contract terms rules.

For the self-employed category, the circular stated that, in the absence of the requirements set out in art. 2 of Legislative Decree 81/2015, delivery persons must be guaranteed the minimum levels of protection laid down in Chapter V bis of Legislative Decree no. 81/2015.

Among these, article 47 quater, first paragraph, gives collective agreements the right to define criteria for determining the overall remuneration, which consider the way the service is performed and the customer’s organisation. The second paragraph stated that in the absence of such contracts, riders may not be remunerated based on the deliveries made, and they must be guaranteed a minimum hourly remuneration based on the minimum wage. This minimum wage must be established by national collective agreements of similar or equivalent sectors, signed by the trade unions and employers’ organisations that are nationally comparatively more representative. The third paragraph stated that these workers must be guaranteed a supplementary indemnity of not less than 10 per cent for work carried out at night, during holidays or in unfavourable weather conditions, determined by collective agreements, or, failing this, by decree of the Minister of Labour and social policies.

Under Legislative Decree 81/2015, the Ministry clarified that the collective bargaining agreements which overrule laws, in article 2 and article 47 quater, are those negotiated by trade unions that are nationally comparatively more representative.

To confirm the greater representation requirement, according to the Ministry, reference must be made to: (i) the traditional indicators defined by case law (i.e. the Trade Union’s membership, a significant national presence, participation in self-defence actions, formation and stipulation of collective bargaining agreements, and involvement in individual, multiple and collective disputes); (ii) the participation of negotiating agents in the permanent observatory established by art. 47 octies of Legislative Decree 81/2015: (iii) the signatories of the national collective bargaining agreement for the broader sector, within which, due to special production and organisational needs, requires compensation and contract terms for certain categories of workers.

If the conditions described above are not met, in the Ministry’s opinion, the collective agreement is unsuitable to derogate from legal provisions. In this case the provisions of article 2, first paragraph, or article 47 quater, second paragraph, of Legislative Decree 81/2015.

This framework, considering the recent development of the food delivery market and labour law developments, includes the experimental protocol signed on 6 November 2020, by Assodelivery and CGIL, CISL and UIL at the Prefecture of Milan.

This protocol aims at respecting the legality and the rights of workers in the sector to provide a valid contrast to labour exploitation. The Assodelivery member companies undertake to

• adopt, within six months of its stipulation, a Code of Ethics and Organisation, Management and Control Systems under Legislative Decree no. 231/2001;
• establish a national register of authorised companies for the delivery of orders to operate exclusively through dedicated food delivery platforms without recourse to third party companies to find riders;
• monitor the working dynamics of riders using a Supervisory Body made up of representatives of employers’ associations and trade unions;
• communicate irregular data to this Supervisory Body quarterly to recognise an alarm threshold after which it will be necessary to deal with further problems and, if required, send reports to the Public Prosecutor’s Office.

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