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The ruling which the Court of Appeal of Turin n. 26/2019, published on 04.02.2019, expressed itself on the well-known case of the riders (otherwise called, "bicycle-delivery men"), is emblematic of the friction subsisting between the modern organization of work and the contractual schemes into which the working reality is forced.
In the specific case dealt with by the judgment of the Court of Appeal, the riders had been hired with coordinated and continuous time-limited collaboration contracts, to carry out the delivery of meals at home, with the use of their own bicycle, managing the organization of shifts and orders with the use of a smartphone.
It was precisely the organization of the shifts, which took place essentially independently of the riders, which was the premise that allowed the Turin court to reject the workers' requests and not recognize the subordination of the employment relationship.
In fact, the delivery men were directly to communicate to the employer in which time slots would have been available to make deliveries and, even, after having declared their availability, they could in any case decide to communicate not to return the service and to do not show up for the round already established.
Therefore, the loss of the obligatory nature of the service, an element that characterizes the employment relationship pursuant to art. 2094 of the Civil Code, determined the Court's decision not to consider the subordination obligation to exist.
The same Court, however, could not fail to consider that work performance, when actually rendered, was organized according to the employer's directives, in relation to the time and place of execution of the work activity.
It was the employer who indicated to the riders when and where to deliver, elements which, according to the art. 2 of Legislative Decree 81/2015, entail the application of the "discipline of the employment relationship subordinated also to the collaboration relationships that are realized in exclusively personal, continuous work performances", of which in the art. 409, c. 3, civil procedural code.
To overcome the antinomy of a working relationship on the border between subordination and autonomy, the Court decided to follow up on an interpretation of the art. 2 cit., already established in doctrine, according to which the legislator intended to introduce a "heterogeneously-organized", or "a third kind of relationship, which is placed between the employment relationship referred to in Article 2094 of the Civil Code and the collaboration as foreseen by article 409 n.3 civil procedure code, evidently to guarantee greater protection to new work cases that, following the evolution and the relative accelerated introduction of recent technologies, are being developed "(page 20 , commentary).
The peculiarity of this interpretation would not be in the simple conversion of the coordinated and continuous relationship into a subordinate employment relationship but in the application of the "discipline of the employment relationship subordinated to the relations of autonomous heterogeneously-organized collaboration (in existence), which however continue to maintain their nature. This means that the heterogeneously-organized worker remains, technically, "autonomous" but for every other aspect, and in particular as regards safety and hygiene, direct and deferred remuneration (therefore professional classification), time limits, holidays and social security, the relationship is regulated in the same way ” (page 23, comment).
In other words, the aforementioned coordinated and continuous work relationship, which is autonomous as regards the obligation to provide the service and employee as regards time and place of execution, becomes subordinate when the service is rendered, with consequent application , only and limited to this period, of the protections provided for employees of the category to which they belong in terms of safety, hours and remuneration, with the exclusion, however, of guarantees on dismissal.
In conclusion, having allowed the riders in question to obtain a salary corresponding to that provided for by the national collective bargaining agreement, the Turin court has provided the basis for extending the protection to a new group of workers who are in a limbo between autonomy and subordination, with the only limit, at least for now, of protection in the matter of dismissal. (AA)
