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
Others insights related:
On 15 September 2020, the ASSODELIVERY and UGL-RIDER trade associations signed the first National Collective Bargaining Agreement governing the work contracts of Bike Delivery Riders, also known as “Riders”.
Regardless of any remark as to trade representation issues currently bringing about considerable debate, the agreement, called “National Collective Bargaining Agreement for governing the delivery of goods on behalf of third parties, carried out by self-employed workers, the so-called Riders”, has been reached after almost a year following the entering into force of Law No. 128/2019 introducing the first measures for the protection of “gig economy” workers.
Riders have agreements which, according to the signatories, must be traced back to the scope of self-employment. Indeed, article 7 of the National Collective Bargaining Agreement defines riders as “self-employed workers who, based on a contract with one or more platforms, decides whether to render its own delivery services for the goods ordered through the relevant application”.
Amongst the main measures provided, one may count the acknowledgment of a minimum guaranteed fee, bonus systems, safety equipment, insurance coverage, prohibition to discriminate and equal opportunities, personal data protection and trade union rights excluding, at the same time, the typical institutions of employment from arising such as, for instance, remuneration for overtime, additional monthly payments, annual leave, severance pay.
Let us discuss the main institutions in detail.
As regards those aspects of economic nature, the National Collective Bargaining Agreement foresees the acknowledgment of a minimum fee (Euro 10 per hour) to riders, calculated based on the “estimated” time for making deliveries which, if less than an hour, shall be thus re-parameterised in proportion to the “estimated” time for delivery. Such fee shall in no way be less than Euro 7 for the first 4 months as from commencement of the delivery service in a new city.
Furthermore, the fee shall be increased to a variable extent from 10% to 20% depending on whether the activity is carried out during night hours (from 0:00 to 7:00), holidays (amongst which Sundays are not included) or during the days in which the weather conditions are “bad”.
Instead, to motivate bike delivery riders the National Collective Bargaining Agreement introduces a bonus system pursuant to which the companies must acknowledge a lump-sum bonus to each Rider equal to Euro 600 each 2000 deliveries throughout the solar year (up to a maximum of Euro 1,500 per solar year).
The agreement does not only govern economic aspects, but also aims at protecting the health and safety of bike delivery riders, ensuring them that the provisions under the Health and Safety Consolidation Act under Legislative Decree No. 81/2008 are applied to them and that they participate to specific training courses.
Pursuant to the National Collective Bargaining Agreement, delivery companies must provide Riders with safety equipment, such as high visibility clothing and a helmet, to be replaced with fixed regular intervals.
Finally, by “regulating” a practice which is already spread in part, the principal must take out insurance coverage for any accident at work and professional illness, as well as for any possible damage to things or people caused in carrying out the respective activity.
Finally, in so far as the termination of the agreement is concerned, Riders are entitled to unilaterally withdraw from the contract at any time with immediate effect, whilst the principal is requested to abide by a withdrawal notice of at least 30 days (save for the case of breach of contract for wilful misconduct or gross negligence) or, alternatively, to grant them with an allowance equal to half the remuneration received.
Others Insights related:
On September 15, 2020, the trade union associations ASSODELIVERY and UGL-RIDER signed the first National Collective Bargaining Agreement (“NCBA”) governing the relationship between Bike Delivery Riders so called “Riders” and their companies. The agreement, called “National Collective Bargaining Agreement for governing the delivery of goods on behalf of third parties, carried out by self-employed workers, the so-called Riders”, has been reached after almost a year following the entering into force of Law No. 128/2019 introducing the first measures for the protection of “gig economy” workers. Article no. 8 of the NCBA defines Riders as “self-employed workers who, based on a contract with one or more platforms, decides whether to render its own delivery services for the goods ordered through the relevant application”. That being stated the NCBA provides different provisions such as a minimum guaranteed fee for the riders, bonus systems, safety equipment, insurance coverage, prohibition to discriminate and equal opportunities, personal data protection and trade union rights excluding, at the same time, the typical institutions of employment from arising such as, for instance, remuneration for overtime, additional monthly payments, annual leave, severance pay. Furthermore the NCBA rules also the termination of the self-employment.
In particular Riders are entitled to unilaterally withdraw from the contract at any time with immediate effect, whilst the principal is requested to give at least 30 days’ notice unless the payment of an indemnity is chosen by the principle. However during these days the main trade unions associations and the Ministry of Labour are discussing about the lawfulness of the NCBA based on the representation of the UGL-RIDER.
Source: Il Quotidiano del Lavoro
Urged by requests for protection from some bicycle couriers who proposed an emergency appeal, as per article 700 of the Code of Civil Procedures, the Court of Florence (Florence Labour Court 1 April 2020) first, and then Bologna’s (Bologna Labour Court 14 April 2020) ruled that food delivery platforms have an obligation to provide them with suitable personal protection equipment (“PPE”) against the risk of contagion.
Both of the rulings recognise the existence of fumus boni iuris (grounds for the claim), considering employment with food delivery platforms in the context of article 2 paragraph 1 of Legislative Decree no. 81/2015 with the consequent application of laws related to employment.
Then, in terms of the specific profiles regarding application of the measures and protections regarding health and safety:
In addition to the fumus boni iuris requirement, the aforesaid Courts confirm the existence of periculum in mora (imminent and irreparable detriment). This is due to the fact that the performance of the work activity without the aforesaid PPE could expose bicycle couriers, pending a specific ruling, to detriment, including irreparable, of their right to health.
The Italian Supreme Court has stated that the rules on employment apply to so-called riders. The issue of riders is affecting the courts at all latitudes of the world. In this regard, a decision has just been issued by the Superior Court of Madrid, which ruled that Spanish riders must be considered employees and therefore false self-employees.
With judgment no. 1663 of 24 January 2020, the Court of Cassation stated that the rules on employed work, in their complexity, apply to those workers who carry out activities of delivery of goods on behalf of others, in urban areas and using bicycles or motor vehicles, through platforms including digital platforms. We are talking about so-called riders.
The Judges of the Supreme Court have highlighted how incorrect it is to speak of “tertium genus” between coordinated collaborations under art. 409, paragraph 3, c.p.c. and subordinate employment relationships.
In attempting to define the nature of the relationship between the riders and the delivery companies, the Supreme Court considered it necessary to verify whether the service offered by the riders presents the elements provided by art. 2 of Legislative Decree no. 81/2015: a mainly personal and continuous work performance, the execution of which is organised by the client.
The Court has thus found in this research:
Read here the full version of the article in Italian language.
Source: Guida al lavoro de Il Sole 24 ore.