10.6092/issn.1561-8048/13566
The essay, after investigating the criticalities of the agro-food chain that make illegal gang-master trade (“caporalato”) a phenomenon coessential to the survival of the agricultural enterprise on the market in the face of the negotiating dominance of the large-scale retail trade (GDO), , illustrates the prospects and potentialities of the use of the network contract as a tool to contrast the informal economy. The co-determination, in fact, allowing companies to share the cost of labor in return for a joint employment, seems a tool susceptible to combat the serious labor exploitation much more than the criminal sanction policies, even in light of the low effectiveness of the Network of agricultural labor quality.
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Roberto Pettinelli
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Italian Labour Law e-Journal
Joint recruitment
The network contract: an instrument to contrast labour exploitation in agriculture. The Italian case
Text.Serial.Journal
https://illej.unibo.it/
14
Miscellaneous
2021-12-22
2021-09-16
2021-12-22
2021-12-22
97-118
ILLeJ
Roberto Pettinelli
2021/12/22
10.6092/issn.1561-8048/13566
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1561-8048
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Joint recruitment
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The network contract: an instrument to contrast labour exploitation in agriculture. The Italian case
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The network contract: an instrument to contrast labour exploitation                     Italian Labour Law e-Journal
in agriculture. The Italian case                                                               Issue 2, Vol. 14 (2021)
Vincenzo Cangemi                                                                                     ISSN 1561-8048
vincenzo.cangemi@unitn.it                                             https://doi.org/10.6092/issn.1561-8048/13566
Roberto Pettinelli
roberto.pettinelli@unitn.it




         The network contract: an instrument to contrast
        labour exploitation in agriculture. The Italian case
                            Vincenzo Cangemi, Roberto Pettinelli



  1. Introduction. The Italian context. 2. The instruments to prevent and combat
  gangmastering and labor exploitation. In search of a “fair price” for the sale of agro-food
  products. 2.1. Unfair trade practices in the supply chain and illegal gangmaster trade. 3. The
  crime of illegal intermediation and labor exploitation. 4. The Quality Agriculture Work
  Network. 5. Network contracts in agriculture. 6. The advantages of using the network
  contract as a way of regulating competition over working conditions in the supply chain:
  joint-recruitment and co-employment

                                                         Abstract

      The essay, after investigating the criticalities of the agro-food chain that make illegal gang-master
      trade (“caporalato”) a phenomenon coessential to the survival of the agricultural enterprise on the
      market in the face of the negotiating dominance of the large-scale retail trade (GDO), illustrates
      the prospects and potentialities of the use of the network contract as a tool to contrast the
      informal economy. The co-determination, in fact, allowing companies to share the cost of labor
      in return for a joint employment, seems a tool susceptible to combat the serious labor
      exploitation much more than the criminal sanction policies, even in light of the low effectiveness
      of the Network of agricultural labor quality.

      Keyword: Labour exploitation; Network contract; Co-employment; Joint recruitment




  1. Introduction. The Italian context.+

     In Italy can be found widespread forms of labour exploitation and illegally recruiting
  labour for a long time, just think that the first law that introduce tools to fight abuses
  perpetrated by gangmaster dates to the early last century. What changed over the years were,
  above all, the victims of this silent drama that rages in the countryside: in the past they are


  
    Vincenzo Cangemi and Roberto Pettinelli were both, at the time of writing, research fellows at the Law Faculty
  of Trento. This article has been submitted to a double-blind peer review process.
  +
    The essay is the result of a common discussion; however, the author of § 1, 3, 4 and 5 is Vincenzo Cangemi,
  the author of § 2 and 2.1 is Roberto Pettinelli. The § 6 has been the object of joint writing. It is part of the
  project “FARM - Responsible Agriculture Chainst Farm” (CUP B38D19004710007) and was presented in the
  XXIII ISLSSL World Congress (Challenges to labour law and social security systems) held in Lima between 7 and 10
  September 2021.
    Vincenzo Cangemi                                                                                 Italian Labour Law e-Journal
    Roberto Pettinelli                                                                                      Issue 2, Vol. 14 (2021)
                                                                                                            Section: Miscellaneous




Italian citizens, today they are mainly foreign workers.1 Despite several parliamentary
inquiries2 and subsequent legislative reforms,3 the problem of illegal gang-master trade (so-
called caporalato) and labour exploitation is, with varying degrees of severity, still firmly rooted
in the country.
    The serious epidemiological crisis caused by the spread of the Sars-Cov-2, more recently,
has led to a worsening of the already precarious conditions of migrant workers trough “an
exponential increase of the working activity with the consequent decrease, for example, of
the break time, the general lengthening of the daily working time, the increase of the risk of
even serious accidents”.4 The problems have regarded also health and safety issues related to
the preventive measures implemented against Covid-19, considering the failure to delivery
personal protective equipment to workers and the precarious conditions of the housing
provided by the employer which did not allow respect for social distancing.5
    It is possible to define the illicit gang-master trade (caporalato) as an “illicit system of
recruiting and exploitation of labour by illegal intermediaries (caporali) who recruit the
workforce” for third parties. Workers recruited in this way are quite often subjected during
the employment relationship to degrading working and living conditions, in breach of the
provisions on working time, pay and social contributions, health and safety at work.6 This
phenomenon is favoured by the intrinsic characteristics of agricultural work which constitute
an important risk factor. The seasonal and temporary nature of the harvest time makes work
precarious and the workers easily blackmailed, because they are bound to accept heavy and
degrading working conditions in order to have a job. The need to save time in order to avoid
the deterioration of products and to reduce the costs related to this production phase has an
impact on the productive rhythms and methods of remuneration (es. piecework pay). At the
same time, due to the seasonality of agriculture, migrants are pushed to move periodically
throughout the territory, following the trend of crops, to ensure their livelihood. This
situation clashes, however, with the “institutional and welfare system that rewards the
permanence” of the foreign citizen for the access to social rights.7 This forced mobility of


1 Perrotta D., Vecchi e nuovi mediatori. Storia, geografia ed etnografia del caporalato in agricoltura, in Meridiana, 2014, 1,
193 ff.; Chiaromonte W., «Cercavamo braccia, sono arrivati uomini». Il lavoro dei migranti in agricoltura fra sfruttamento e
istanze di tutela, in Giornale di diritto del lavoro e relazioni industriali, 2018, 2, 338 ff.
2 The most recent one ended on 12 th May 2021 by issuing a document approved by the joint parliamentary

committees XI (private and public labour) and XIII (Agriculture) on the phenomenon of illicit gang-master
system (caporalato) in agriculture.
3 Sgroi A., Utilizzo interpositorio illecito della manodopera: le misure di contrasto, in Rivista del diritto della sicurezza sociale,

2018, 1, 95 ff.
4 Omizzolo M., Sfruttamento, caporalato e lavoratori migranti in agricoltura al tempo del Covid-19, in IDOS, Dossier statistico

immigrazione 2020, 2020, 288 ff.
5 Camera dei deputati, Documento approvato dalle commissioni riunite XI (Lavoro pubblico e privato) e XIII (Agricoltura) a

conclusione dell’indagine conoscitiva sul fenomeno del cosiddetto «caporalato» in agricoltura, in
https://documenti.camera.it/_dati/leg18/lavori/documentiparlamentari/IndiceETesti/017/009/INTERO.p
df, 2021, 26 accessed 09 June 2021.
6 Ministero del lavoro e delle politiche sociali, Piano triennale di contrasto allo sfruttamento lavorativo in agricoltura e al

caporalato      2020-2022,       in      https://www.lavoro.gov.it/temi-e-priorita/immigrazione/focus-on/Tavolo-
caporalato/Documents/Piano-Triennale-post-CU.pdf 2020, 4 accessed 09 June 2021.
7 In this regard, the Italian Constitutional Court has repeatedly intervened to declare the unconstitutionality of

the provisions that recognize social benefits only if the migrants demonstrate that have been resident in the
territory for a certain period. See, among others, Corte cost., 09 March 2020, n. 44, in Foro Italiano, 2020, 6, 1,

https://doi.org/10.6092/issn.1561-8048/13566                                                                                       98
  Vincenzo Cangemi                                                                                      Italian Labour Law e-Journal
  Roberto Pettinelli                                                                                           Issue 2, Vol. 14 (2021)
                                                                                                               Section: Miscellaneous




migrant workers is therefore a further factor of vulnerability, because it “undermines the
guarantee of the rights relating to requests and renewals of residence permits, to registration
in the health register, as well as access to judicial protection”.8
    The presence of such vulnerable, low-skilled and powerless workforce, which is
predominantly foreign, represents an attractive pool of low-cost employees for businesses,
since it enables them to discharge the effects of competition on prices to the workers.9
    The expansion of this method of recruitment and employment of labour in the
agricultural sector can be explained, in the current economic context characterized by the
globalization of markets, by the market needs of the large retail chains and the agri-food
industry, which determine a fierce downward competition in prices and exhausting
productive rhythms required to respond effectively and promptly to the demand of goods.10
It is just the dynamics of the agri-food chain that push agricultural enterprises to keep labour
costs as low as possible, by ensuring pay below the minimum wage, and to offer degrading
working conditions.11 The latter have “little bargaining power” and are unable to affect the
pricing of agricultural products due to structural factors such as small size, fragmentation
and lack of innovation, as well as other factors more closely linked to the specific
characteristics of agricultural production, like the nature of the product or the
unpredictability of the harvest in quantitative and qualitative terms.12 Consequently, the only
way to preserve their profitability become the downward of labour costs.
    For this reason, after a brief analysis of the instruments adopted at any level to prevent
and to contrast labour exploitation in agricultural sector by the legislator, it will be
appropriate to develop a reasoning on the network contract, as a tool able, on the one hand,
to strengthen the position of agricultural enterprises in the market, by improving their
productivity and organizational efficiency, and, on the other hand, to avoid to the inherent
temporary and cyclical nature of agricultural work.


2. The instruments to prevent and combat gangmastering and labor exploitation. In
search of a “fair price” for the sale of agro-food products.

   The agricultural entrepreneur, defined according to the provisions of art. 2135, paragraph
2 of the Italian Civil Code in relation to the care of the biological cycle or a phase of it, is

1885; Corte cost., 06 June 2013, n. 133, in Foro Italiano, 2013, I, 2069; Corte cost., 09 February 2011, n. 40, in
Foro Italiano, 2011, I, 2930.
8 Schiuma D., Sfruttamento e (in)sicurezza nel lavoro agricolo degli extracomunitari, in Calafà L., Iavicoli S., Persechino

B. (eds.), Lavoro insicuro. Salute, sicurezza e tutele sociali dei lavoratori immigrati in agricoltura, il Mulino, 2020, 156.
9 Faleri C., Il lavoro povero in agricoltura, ovvero sullo sfruttamento del (bisogno) di lavoro, in Lavoro e diritto, 2019, 1, 150-

151.
10 De Angelis N., Il lavoro irregolare dei braccianti immigrati. Profili critici e azioni di contrasto, in D’Acunto S., De Siano

A., Nuzzo V. (eds.), In cammino tra aspettative e diritti. Fenomenologia dei flussi migratori e condizione giuridica dello straniero,
ESI, 2017, 406; Canfora I., Le regole del gioco nelle filiere agroalimentari e i riflessi sulla tutela del lavoro, in Agriregionieuropa,
2018, 55.
11 Pinto V., Rapporti lavorativi e legalità in agricoltura. Analisi e proposte, in Giornale di diritto del lavoro e relazioni industriali,

2019, 1, 12-13.
12 Tarangioli S., Le filiere agroalimentari in Italia fra spinte competitive, innovazione e processi inclusivi, in Zumpano C.

(eds.), Migrazioni, agricoltura e ruralità. Politiche e percorsi per lo sviluppo dei territori, 2020, 88.

https://doi.org/10.6092/issn.1561-8048/13566                                                                                           99
     Vincenzo Cangemi                                                                                Italian Labour Law e-Journal
     Roberto Pettinelli                                                                                     Issue 2, Vol. 14 (2021)
                                                                                                            Section: Miscellaneous




presented by the following paragraph 3 in relation to the ability to place itself on the market
both through the manipulation, preservation and processing of products and, of course, their
commercialization. Because the relationship between the activities of modification of
agricultural products and commercialization is not indispensable, commerce - an elementary
form of exchange for the obtainment of income and, therefore, profits - also refers to
exclusively harvested products. It is thus established, within the wider principle of freedom
of enterprise protected by art. 41 of the Constitution, a deep connection between agricultural
activity, productive organization and market.
    Agricultural products, as is intuitive, take root within the circulation processes of
commodities that, in our country, are essentially distinguished by types of supply chain. There
are the so-called short supply chains, which promote proximity between producer and
consumer or alternative disintermediation channels, including those in solidarity aimed at
encouraging a critical approach to consumption (GAS – Solidarity Purchasing Groups), or
based on the creation of direct fidelization processes between producers and consumers,
based on the values of environmental sustainability and the defense of biodiversity (GODO
– Groups organized supply and demand).13 However, apart from these residual forms of
distribution, which do not seem to have structurally altered the market functioning (and,
therefore, to have affected the recourse to ‘caporalato’) due to their limited amplitude and
incapacity to absorb the entire agricultural production, a predominant position in the
relationship with the final consumers is played by the so-called long chains of the GDO
(Large-scale retail trade). These are companies that, due to their diffusion on the national
territory or to the fact that they belong to international chains, are able to concentrate their
sales in widespread physical spaces and, therefore, require considerable quantities of food
products (fresh, processed, transformed) that they are able to find almost everywhere in the
world, even in the opposite direction to the seasonality of the production. The competition
in the supply of such commodities on a global level (often, non-EU) and the simple
substitutability of suppliers, together with the reduced number of companies of the large-
scale retail trade in the face, on the other hand, of productive companies that tend to be
fragmented and in competition with each other, has therefore generated a natural position
of oligopsony of the large-scale retail trade, favoring vertical bargaining phenomena.14 In
particular, these are agreements that impose, as noted by the Italian Antitrust Authority as
early as 2013, “‘unfair’ contractual conditions, when not outright vexatious”, including not
only discount clauses of a commercial nature, but also clauses for “remuneration of
distribution services (access fees, promotional contributions, remuneration for preferential
exposure, for central services, etc.)” to which are added “discounts and contributions (so-
called extra-invoice) conditioned on the achievement of specific sales objectives, events
and/or promotional activities by distribution companies» or other extraordinary charges, by
way of remuneration to certain general expenses incurred by the central office or by the



13Paoloni L., La filiera agroalimentare «etica» e la tutela del lavoro, in Diritto Agroalimentare, 2020, 3, 643 ff.
14Costantino L., L’integrazione verticale per contratto nel settore agroalimentare: fattispecie giuridica e disciplina applicabile, in
Contratto e impresa, 2013, 6, 1448 ff.

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     Vincenzo Cangemi                                                                           Italian Labour Law e-Journal
     Roberto Pettinelli                                                                                Issue 2, Vol. 14 (2021)
                                                                                                       Section: Miscellaneous




individual chains, «such as secretarial expenses, centralisation of orders, stock management,
etc.”.15
    The oligopsony of the enterprises of the GDO also benefits, upstream, from the
preponderant weight of the Great Purchasing Centers (also known as GCA – ‘Grandi Centrali
di Acquisto’), which constitute a form of “alliance between distribution chains” functional to
exploit the contractual weight of the united enterprises as a result of the aggregation of the
overall level of the orders to obtain “cost savings in the phase of purchase of the goods
through the collective negotiation with the suppliers” of distribution framework agreements,
functional to fix the general conditions of the contracts that, then, will be signed directly
between the suppliers and the enterprises affiliated to the GCAs.16
    It is with reference to this reality, which has developed predominantly as a result of a
liberalization policy inaugurated by the Italian legislator in 1998 (with Legislative Decree no.
114/1998) – to which a regulation of competition has not corresponded, until late, in the
EU – that the structural unbalances within the Italian agro-food chain have affected not only
agricultural producers, but also the industrial processing companies (which, however, formed
an essential alternative recruitment channel for the first ones), which have seen their profit
margins reduced, sometimes even below the average costs of production, even due to the
rise of private label products, which allow the companies of the GDO to dominate the chain
imposing to the undertaking producing the price of the product and, therefore, marginalizing
the profits of the them on the products purchased.17 Obviously, this is not a phenomenon
exclusively affecting Italy, but a condition that covers the entire European Union market,
albeit with different nuances. Since 2008, the European Commission, committed to finding
the reasons for an unexpected fluctuation in agricultural product prices, has found that the
unequal bargaining power within the food chain is the main reason for the lower profit
margins of producers, especially small ones.18 This led to the issuance, first, of a EU
Regulation (no. 261/2012) regarding the milk and dairy sector and, a year later, of a EU
Regulation (no. 1308/2013) regarding all contracts for the sale of agricultural products, which
contain principles for regulating the agricultural competitive market, on the one hand, linked
to the contents of the agreements and, on the other, aimed at encouraging the aggregation
of undertaking producing into associations or organizations of producers to strengthen their
contractual position. However, it must be said that the absence of any provision designed to
allow for a check on the reasonableness of the exchange (because the Regulations described
above are more oriented towards prescribing the mandatory written form of the agreements,
although at the discretion of the Member States) has, in fact, only apparently constituted a


15  Agcm (id est, Italian Antitrust Authority), Indagine conoscitiva sul settore della GDO – IC43, 2013, 4 in
https://www.agcm.it/competenze/tutela-della-concorrenza/indagini-conoscitive/lista-indagini-conoscitive
accessed 02 November 2021.
16 Agcm, ibid., 85 ff.
17 Ismea, Rapporto sulla competitività dell’agroalimentare italiano, July 2018, in www.ismea.it accessed 09.06.2021.
18 European Commission, Communication Food prices in Europe, COM(2008) 821; Id., Communication A better

functioning food supply chain in Europe dated 28.10.2009; and then Id., Communication Tackling unfair trading practices in
the business-to-business food supply chain dated 15.07.2014; Id., Report on unfair business-to-business trading practices in the
food supply chain dated 29.01.2016; European Parliament resolution dated 07.06.2016 on unfair trading practices in
the food supply chain.

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     Vincenzo Cangemi                                                                             Italian Labour Law e-Journal
     Roberto Pettinelli                                                                                  Issue 2, Vol. 14 (2021)
                                                                                                         Section: Miscellaneous




protective rule for suppliers, who are only formally guaranteed in terms of knowledge of the
conditions of the agreement and by a minimum duration of the agreement. However, despite
the fact that art. 42 TFEU allows the European legislator to derogate from the general rules
on competition between companies in the agricultural sector,19 the conditions of the
agreement are left to the free functioning of the market.20 Also following the implementation
of the previous legislation in the face of the issuance of Regulation no. 2393/2017 (so-called
Omnibus Regulation),21 then, the same convenience for producers to associate or organize
themselves has ended up stopping in front of the persistent prohibition, present in art. 209
Reg. no. 1308/2013, to conclude agreements that establish identical prices. This has nullified
the aggregative intent (at least in relation to supply agreements) and to favor, rather, a revival
of competition on the market based on the reduction of labor costs (and therefore the ability
to offer commodities at lower prices).
    If we then consider how the absence of any sanctioning requirement established at
European level – which has left individual EU countries with discretionary powers regarding
forms of protection for producers (civil, administrative, etc.) – has contributed to the
fragmentation of the European market with consequent effects on competition,22 it can be
understood how, as agricultural entrepreneurs are captivated by the oligopsonistic
commercial practices of large-scale distribution companies. Consequently the use of flexible
and underpaid labor has proved to be an elementary (and at times indispensable) factor for
agricultural companies to manage the strong competitive pressure and the need, deriving
from the value production chain, to increase the otherwise narrow profit margins.23 The high-
cost of regular labor contract has an impact, in fact, on the cost of production but, due to
the characteristics of the commercial relationship between the parties, the reduced market
scenarios and the low profitability of products, an increase in the price charged for the supply
cannot be generated.24 This situation encourages a race to the illegal labor in order to fill the
tendency of reduced marginal revenues that derive from the commercialization of
agricultural products (especially unprocessed) within the supply chain.
    In short, given the downward competition on agricultural products, agricultural
enterprises inevitably tend to rely on ‘caporali’ (illegal intermediaries) and undeclared workers
in the obvious knowledge that the number of them and the low salary, within a supply-chain
of virtually slave labor, is capable of favoring profit margins on the product unit value and
increase, therefore, the final profits. In this context, as far as the European Union has been
interested in labor issues only insofar as they have a direct or reflected impact on

19 Jannarelli A., Profili giuridici del sistema agro-alimentare e agro-industriale. Soggetti e concorrenza, Cacucci editore, 2016,
p. 117 ff.
20 See Russo L., Le pratiche commerciali scorrette nella filiera agroalimentare tra diritto UE e diritto interno, in Diritto

agroalimentare, 2020, 2, 406 ff.
21 Jannarelli A., Dal caso “indivia” al regolamento omnibus n. 2393 del 2017: le istituzioni europee à la guerre tra la PAC e

la concorrenza?, in Diritto agroalimentare, 2018, 1, 109 ff.
22 This has happened despite the indications of the European Commission in Green paper on unfair trading practices

in the business-to-business food and non-food supply chain in Europe dated 31.01.2013.
23 Pinto V., Filiere agro-alimentari e agro-industriali, rapporti di produzione agricola e lavoro nero, in Ferrante V. (eds.),

Economia ‘informale’ e politiche di trasparenza. Una sfida per il mercato del lavoro, Vita e Pensiero, 2017, 91 ff.; Faleri C.,
nt. (8), 150-151.
24 Paoloni L., nt. (12), 647 ff.



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     Vincenzo Cangemi                                                                               Italian Labour Law e-Journal
     Roberto Pettinelli                                                                                    Issue 2, Vol. 14 (2021)
                                                                                                           Section: Miscellaneous




competitiveness, in its most recent initiatives, the law of the Union seems to have gathered
around the negative effects that unfair commercial practices carried out downstream in the
chain, in the relationship with the companies of the large-scale retail trade, reflect on the
other links of the chain (the weakest), a much broader attention than in the past, moving at
the base of a new intervention on unfair commercial practices in the business-to-business
relationships in the agricultural and food chain (the Directive no. 633/2019) the
consideration that they are susceptible to reverberate “in cascade” on the subsequent links
of the food-chain, since the party who suffers them will inevitably try to unload the harmful
effects on their contractual partners, until forcing the last link, the primary producers, to take
charge of it taking advantage, in turn, of the physiological condition of weakness, in fact, of
workers (Recital 7).25 The spirit of impunity which seems to have characterized the
relationships between companies operating in the agro-food chain and which was favored
by the lock-in in which the producing companies were bound (not having negotiating power
unless with the risk of upsetting a commercial relationship very often essential for the same
survival on the market) does not seem, however, to be completely destined to cease with the
adoption of the directive. In fact, the model followed by the European legislator in 2019
seems to be still characterized by some rigidities, so as to have adopted, differently from what
is provided for by the Directive no. 29/2005 on unfair commercial practices between
companies and consumers, a principle of exhaustivity in order to prohibit only certain cases
(some of which, moreover, only under certain conditions) without recurring to a general
definition (and therefore offering a flexible protection) of the phenomenon and without
therefore providing a generalized remedy to balance the position of natural weakness of
agricultural producers in the supply chain.
   Therefore, in this perspective, the elision of caporalato (which, in the end, is nothing more
than an act of unfair competition against competing companies that respect law) remains
entrusted to a gamble on the future, having been overlooked so far by the legislator that the
use of irregular labor will be a structural phenomenon of the agro-food and agro-industrial
sector as long as it does not constitute an economically inconvenient practice for agricultural
companies.


2.1. Unfair commercial practices in the supply chain and and illegal gangmaster
trade.

   It cannot be overlooked, to tell the truth, that the Italian legislator had not been idle
waiting for the issuance of the European Regulation, so much as to have anticipated the
problems through the adoption of some rules aimed at encouraging the integrated
management of the supply chain, but with an approach that has shown a limited integrated
vision of the relationship between the economy of the supply chain and caporalato. This
circumstance, symptomatic of a possible genetic deficiency in the structuring of policies to

25Faleri C., «Non basta la repressione». A proposito di caporalato e sfruttamento del lavoro in agricoltura, in Lavoro e diritto,
2021, 2, 272; Jannarelli A., La tutela dei produttori agricoli nella filiera agro-alimentare alla luce della direttiva sulle pratiche
commerciali sleali business to business, in Rivista di diritto agrario, 2019, 1, p. 1 ff.

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     Vincenzo Cangemi                                                                            Italian Labour Law e-Journal
     Roberto Pettinelli                                                                                 Issue 2, Vol. 14 (2021)
                                                                                                        Section: Miscellaneous




combat labor exploitation in agriculture, is reflected both in the forms of regulation of
bargaining relationships within the supply chain provided by Legislative Decree no. 102/
2005, and in the forms of protection against unfair trade practices introduced by 2012.
   From the first point of view, the structural recourse to irregular forms of work is partly
due to the choice of the domestic legislator to promote fair trade relations within the supply
chain, either through the involvement of the most representative bodies at national level in
the sectors of production, processing, trade and distribution of agricultural and agro-food
products (art.9, Legislative Decree no. 102/2005) and through the stipulation of framework
agreements (art. 10), but in an essentially voluntary perspective and, as such, unable to be
applied to vertical integration contracts to unrelated third parties and, in any case, without
an adequate consideration of the forms of protection for the weaker parties.26
   The problems mentioned are also found, similarly, in the regulation of commercial
transactions regarding the sale of agri-food products, which at the moment finds in the
disharmonious discipline resulting from articles 62 of Law Decree no. 1/2012 (converted
with Law no. 27/2012, subsequently integrated with the Implementing Regulation no.
199/2012) and 10-quater of Law Decree no. 27/2019 (converted with amendments into Law
no. 44/2019)27 the demonstration of the inadequacy of the liberal conception aimed at
supporting the natural convergence of the parties on the contract fairness according to a
logic of maximization of mutual benefits.
   The aforementioned art. 62, although containing a discipline that is in some ways broader
than the subsequent European one,28 in providing for the requirement of a written form for
contracts for the sale of agricultural and food products between entrepreneurs with specific
indication of the essential elements of the agreement (duration, quantity, characteristics of
the product sold, delivery and payment methods) and, above all, of the price (para. 1), has
indeed represented a partial response to a phenomenon characterized not so much by the
vacuity of the contractual texts, but above all by the imposition of oppressive clauses that
the weak parties, under penalty of leaving a market essential for the survival of the business,
just can’t help but subscribe; indeed, it is a discipline incapable of directing the negotiated
exchange towards objectives of fairness and justice of the contractual regulation. From this
point of view, the same list of prohibited practices in commercial relations between economic
operators (and therefore not only those relating to contracts for the sale of agro-food
products) has proved in the long run to be completely inadequate to ward off hypotheses of
exploitation by large-scale distribution companies of the economic dependence of supplier
companies, although, according to the subsequent implementing decree (d.m. no. 199/2012),
among the particularly burdensome purchasing conditions prohibited could also include
those capable of determining, in contrast to the principle of good faith and fairness, prices
clearly below the average production costs (art. 4, paragraph 2, letter c).



26 Costantino L., nt. (13), § 4.
27 Benedetti A.M., Bartolini F., La nuova disciplina dei contratti di cessione dei prodotti agricoli e agroalimentari, in Rivista
di diritto civile, 2013, 3, 641 ff.; Torino R., La nuova disciplina dei contratti e delle relazioni commerciali di cessione dei
prodotti agricoli e alimentari, in Contratto e impresa, 2013, 6, 1425 ff.
28 Russo L., nt. (19), 416 ff.



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     Vincenzo Cangemi                                                                Italian Labour Law e-Journal
     Roberto Pettinelli                                                                     Issue 2, Vol. 14 (2021)
                                                                                            Section: Miscellaneous




    The rationalization efforts made in 2012 have in fact shown all the limits related to the
inability to adequately affect the pricing criteria for the sale of agricultural products (left to
the free competitive market), given the difficulty for the Italian Antitrust Authority to find
adequate parameters of comparison to assess the threshold value below which the purchase
price of the product can be considered an illegal imposition. The definition of an average
production price is, moreover, affected by an extreme variability of definition, since, being
linked to the ability of the company to generate profits, it is affected by the size of the
agricultural company, its geographical and altimetrical location, its degree of managerial and
organizational efficiency, the distribution of production on one or more products, the
presence of other revenues generated through different revenues (even if related) to that of
the product sold. The Authority does not, after all, have the possibility of establishing, on its
own, a single average cost value as a reference for all the prices paid for each product, unless
it wishes to reintroduce, indirectly, a minimum price policy.
    In the light of the abandonment of the CAP (Common Agricultural Policy) centered on
fixing exchange prices, the Italian legislator has therefore not been able to achieve the
objective which, at least ideally, it intended to pursue. The case of the dairy sector is probably
one of the most paradigmatic examples, given that the daily production of milk, the trend of
daily international quotations, the significant fluctuations in demand for products, both fresh
and processed, have continued to have a major impact on the way the price of products is
negotiated. This has favored the imposition by the processing companies of prices lower
than the average production costs of the farmers, in its turn generated by the imposition of
a price realized on the shelves of the large-scale retail trade equal to or lower than the total
processing and distribution costs.29 The conflict on the determination of the price has,
moreover, exploded a few months after the introduction of d.l. n. 51/2015 concerning
measures to face the serious crisis and relaunch the dairy-milk sector. And in fact, despite
the enthusiasm aroused by a specific provision aimed at establishing monthly average
production costs of raw milk through the active involvement of Ismea for the purposes of
the application of art. 62 cit., a strict interpretation of the Antitrust Authority has taken root
in the immediate. It excluded a general prohibition for milk purchasers to apply a purchase
price lower than the average production costs calculated by Ismea, which were considered as
one of the elements at the Authority’s disposal to evaluate whether, in the specific contractual
relationship, “the industrial company has actually imposed, in contrast with the principles of
good faith and fairness, a purchase price that is unjustifiably burdensome, evaluating the
possible burdensomeness also on the basis of the level and trend of production costs of
companies active on the market”.30 The legislative technique used in the aforementioned
decree, which has been correctly interpreted by the Guarantor, has indeed shown in the
operators of the sector (as well as in the scientific community) the inability of art. 62 quoted
to offer an adequate response to the demands of market regulation deriving from the

29 Agcm, Indagine conoscitiva sul settore lattiero-caseario, IC51 in https://www.agcm.it/competenze/tutela-della-
concorrenza/indagini-conoscitive/lista-indagini-conoscitive accessed 02 November 2021.
30 Agcm, ibidem, p. 120 ff. In this sense, for the Authority, “the elaborations of the Ismea can certainly be of

help to the evaluation, but they must be interpreted and used together with other informative elements on the
market characteristics”.

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     Vincenzo Cangemi                                                                                     Italian Labour Law e-Journal
     Roberto Pettinelli                                                                                          Issue 2, Vol. 14 (2021)
                                                                                                                 Section: Miscellaneous




structural divarication of bargaining power in the sector, as well as from cyclical market
crises.31
    The tensions relating to the products price redistribution in the supply chain have thus
exploded in 2019, in relation to the DOP pecorino romano food-chain, which has put a
strain on the previous discipline, in the meantime extended with art. 10-quater cit. – in the
wake of the generalized extension to all sectors of value-sharing clauses, capable of holding
the balance of the agreement unscathed against disruptive contingencies in the market prices
of the products traded or other raw material markets (art. 172-bis Regulation no. 1308/2013
following the amendment made by Regulation no. 2393/2017) – to all agricultural products,
allowing to arise, in the background, a presumption of unreasonableness of the exchange
such as not only to constitute, as it is stated, unfair trade practice, but also, clearly, an index
of irregularity in the production process of the products (with implicit repercussions on the
management of labor relations) and therefore an act of unfair competition against virtuous
producers.32
    It had happened that the sale price of sheep’s milk in Sardinia, destined to the processing
companies belonging to the Consortium of Pecorino Romano DOP had undergone a
significant decrease in the last three months, settling at a level lower than the average
production costs borne by farmers, calculated by Ismea in € 70 cents per liter. The protests
of the producers have solicited the Authority to intervene in order to establish whether,
through the imposition of contractual conditions unjustifiably onerous, in contrast with the
principles of good faith and fairness, could be a violation of article 62, Law Decree no.
1/2012 in conjunction with article 2 of Law Decree no. 51/2015.33 In the meantime,
however, in order to deal with the violent protests of shepherds in Sardinia that broke out in
the early months of 2019, following a specific Ministerial intervention, a negotiating table
was opened between processors and producers, at the end of which an agreement was
reached on the sale prices of sheep’s milk, with the commitment of pecorino producers to
pay a fairer price, with the hope of opening discussions with large-scale distribution
companies.
    The aforementioned episode, even though it allows the Antitrust Authority to recognize
the lack of grounds for intervention pursuant to art. 62 cited above, does, however, reveal a
certain inadequacy of the discipline resulting from art. 62 cited above and 10-quater to
provide a direct remedy in situations in which the price policy is affected by the economic or



31 Jannarelli A., Prezzi dei prodotti agricoli e rispetto dei costi medi di produzione tra illusioni ottiche ed effettiva regolazione del
mercato: cronache amare dal Bel Paese, in Rivista di diritto agrario, 2019, 3, 576; See, Canfora I., La filiera agroalimentare
tra politiche europee e disciplina dei rapporti contrattuali: i riflessi sul lavoro in agricoltura, in Giornale di diritto del lavoro e delle
relazioni industriali, 2018, 2, 274 ff.
32 More precisely, art. 10-quater cited has extended Ismea’s competence to establish monthly average

production costs already provided for by Decree Law no. 51 of 2015 to all contracts having as their object the
transfer of agricultural products pursuant to art. 168, par. 1 Reg. no. 1308 of 2013. The provision of prices
significantly lower than the average production costs detected by Ismea, if accompanied by the lack of at least
one of the conditions provided for by art. 168, par. 4 Reg. no. 1308 of 2013, is considered an unfair commercial
practice and entails the application, against the purchasing company, of an administrative sanction of up to
10% of the revenues achieved in the last year prior to the assessment.
33 Agcm, AL21 - Prezzi del latte in Sardegna, Provvedimento n. 27805.



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     Vincenzo Cangemi                                                                                Italian Labour Law e-Journal
     Roberto Pettinelli                                                                                     Issue 2, Vol. 14 (2021)
                                                                                                            Section: Miscellaneous




structural characteristics of the market and not by the mere position of predominance of one
party over the other.
   Moreover, these are two provisions that find it difficult to talk to each other, as is clear
from the absence in the second provision of any reference to the first, even though it qualifies
as an unfair commercial practice the establishment of prices significantly lower than the
average costs of production found by Ismea, from the provision of specific sanctions and
the introduction of a special investigation procedure by the Guarantor Authority. In short,
an only partially overlapping system is created, in which art. 10-quater becomes a special
discipline in the absence of which the conditions of art. 62 finds its (already limited)
operational space.34
   Thus, in conclusion, if it is true that the disturbances that are hovering over the supply
chain do not find in the invoked rules only a partial response to the phenomenon of
“caporalato”, which indeed is ultimately favored, as it is essential to the survival of the
company on the market, it is necessary to verify what other tools are provided by the
“toolbox” of the Italian system, to understand in what terms they are able to operate a
dissuasive policy and contrast this serious scourge.


3. The crime of illegal intermediation and labour exploitation.

   In view of this social scourge that particularly affects the agricultural sector, the Italian
legislator has adopted some instruments, manly of a criminal-repressive nature, which to the
facts have been ineffective to counter the phenomenon. The main reference is to the crime
of illegal intermediation and labour exploitation referred to in art. 603-bis c.p., introduced in
2011 and then modified by Law no. 199/2016. This crime persecutes both those (illegal
intermediaries or caporale) who recruit workers for third parties in conditions of exploitation
and taking advantage of their state of needs and those who use, hire or employ workers,
including even trough an illegal intermediary, subjecting them to conditions of exploitation
and taking advantage of their state of need.
   The article does not proceed to define the exploitation but relies on some indices that can
detect its presence relating to breaches in the field of remuneration, working hours and rest
times, health and safety and, more generally, to the submission to working conditions or
degrading housing situations.35
   If, as a result of the amendment intervened in 2016, the regulatory provision widened its
scope, prosecuting both the illegal intermediary and the user or employer, as well as conducts
not necessarily committed with violence or threat, at the same time, however, it does not


34 Jannarelli A., nt. (30), 582 ff.; Russo L., nt. (19), 421 ff.
35  On the analysis of art. 603-bis c.p. see Miscione M., Caporalato e sfruttamento del lavoro, in Lavoro nella
Giurisprudenza, 2017, 2, 113; Fiore S., La nuova disciplina penale dell’intermediazione illecita e sfruttamento del lavoro, tra
innovazioni e insuperabili limiti, in Diritto agroalimentare, 2017, 2, 267; Andronio A., Il reato di intermediazione illecita e
sfruttamento del lavoro: evoluzione normativa e giurisprudenziale, in Diritti lavori mercati, 2019, 3, 431 ff.; Garofalo D., Il
contrasto al fenomeno dello sfruttamento del lavoro (non solo in agricoltura), in Rivista di diritto della sicurezza sociale, 2018, 2,
229; di Martino A., Sfruttamento del lavoro. Il valore del contesto nella definizione del reato, il Mulino, 2019.

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     Vincenzo Cangemi                                                                                Italian Labour Law e-Journal
     Roberto Pettinelli                                                                                     Issue 2, Vol. 14 (2021)
                                                                                                            Section: Miscellaneous




seem that the instrument is able to cope with the multiform expression of the phenomenon
of labour exploitation in agriculture.36
    So much so, that if, on the one hand, the crime provision has contributed, by virtue of its
dissuasive effects, to the reduction in the use of the most serious forms of irregular work, on
the other, «the overall working conditions, in fact, seem to remain substantially unchanged».37
    The other main limitation of criminal instruments adopted to contrast the phenomenon
is the access to justice.38 There is a certain reluctance of the exploited migrants to take legal
action against the employer and the illegal intermediary in order to assert their rights due to
the fear of losing their jobs and suffering the negative consequences of the legal proceedings,
as well as for a lack of knowledge of their rights. The difficulty of bringing out the cases of
exploitation is mainly due to the absence of a protective path that effectively guarantees an
alternative form of livelihood to the migrant who decides to make complaints.39
    Just think that the art. 22, Legislative Decree no. 286/1998, on the one hand, transposing
Directive 2009/52/EC, recognizes the possibility of obtaining a residence permit to the
migrant that made complaints and cooperated in the criminal proceedings for serious labour
exploitation. On the other, the art. 10-bis of the same Legislative Decree no. 286/1998
exposes the victims of labour exploitation, who very often are undocumented migrants, to
the risk of being prosecuted for the crime of illegal entry and residence in the State.40
    Discussed is, then, among scholars the applicability of the path of protection, provided
for victims of exploitation referred to in art. 18, Legislative Decree no. 286/1998, to the
hypotheses of labour exploitation.41 In both cases, however, the practice has shown a poor
implementation of the two instruments, due to the limited cooperation of migrants in making
complaints.42
    The punitive-repressive perspective that intervenes on the pathological level, “although
essential in countering the most serious forms of labour exploitation”, has shown, ultimately,
all its limitations, as “it is not able to remove its structural reasons”.43 This is also the
consequence of the fact that the entire regulation of immigration is the result of a continuous




36 Faleri C., nt. (24), 262 ff.
37 D’Onghia M., Laforgia S., Lo sfruttamento del lavoro nell’interpretazione giurisprudenziale: una lettura giuslavoristica, in
Lavoro e diritto, 2021, 2, 250; Tarangioli S., nt. (11), 92.
38 Calafà L., Lavoro irregolare (degli stranieri) e sanzioni. Il caso italiano, in Lavoro e diritto, 2017, 1, 80-82.
39 Zonca E.V., Stranieri “invisibili”. Riflessioni comparative in tema di diritto al lavoro e integrazione sociale dei migranti, in

Rivista AIC, 2018, 4, 502-503.
40 Spinelli C., Immigrazione e mercato del lavoro: lo sfruttamento dei migranti economici. Focus sul lavoro agricolo, in Rivista di

diritto della sicurezza sociale, 2020, 1, 135.
41 In a positive sense see Genovese D., Santoro E., L’art. 18 (t.u. immigrazione) e il contrasto allo sfruttamento lavorativo:

la fantasia del giurista tra libertà e dignità, in Giornale di diritto del lavoro e relazioni industriali, 2018, 3, 545 ff.; Lorea L.,
Immigrazione e sfruttamento del lavoratore: profili giuslavoristici, in Il diritto del mercato del lavoro, 2020, 1, 184. Instead,
D’Onghia M., Laforgia S., ibidem, express some perplexity.
42 Santoro E., Stoppioni C., Il contrasto allo sfruttamento lavorativo: i primi dati dell’applicazione della legge n. 199/2016,

in Giornale di diritto del lavoro e relazioni industriali, 2019, 2, 282-283; Caprioglio C., Rigo E., Lavoro, politiche migratorie
e sfruttamento: la condizione dei braccianti migranti in agricoltura, in Diritto Immigrazione Cittadinanza, 2020, 3, 51-53.
43 D’Onghia M., Laforgia S., nt. (37), 251; Calafà L., nt. (38), 81; Torre V., Il diritto penale e la filiera dello sfruttamento,

in Giornale di diritto del lavoro e relazioni industriali, 2018, 2, 309.

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     Vincenzo Cangemi                                                               Italian Labour Law e-Journal
     Roberto Pettinelli                                                                    Issue 2, Vol. 14 (2021)
                                                                                           Section: Miscellaneous




tension between demands to guarantee public order and the needs to protect foreigner as a
person, in which very often to prevail are the first.44


4. The Quality Agricultural Work Network.

    The Law n. 199/2016, together with the amendment of art. 603-bis Italian Penal code,
has revitalized another important measure, the Quality Agricultural Work Network,
introduced by art. 6, Law Decree n. 91/2014, conv. in Law n.116/2014, which aims to
prevent at the root the phenomenon of illegal gangmaster trade and labour exploitation.
    It is an institution where only agricultural companies that fulfil certain conditions,
concerning compliance with decent working conditions, can participate.
    Membership in the Network allows agricultural companies to be exempted from ordinary
inspection checks, with the exception of those relating to health and safety at work and those
carried out following an inspection request. In this way, inspections are carried out mostly
on companies not included in the network.
    The Institution in charge of the network is the Steering Board ‘Cabina di Regia’ which is
chaired by INPS and composed by representatives of relevant national institutions, trade
unions, representatives of employers’ association. It is responsible for, inter alia, promoting
initiatives in the field of active labour policies, combating undeclared work and social
contribution evasion, organising and managing seasonal labour flows, assisting foreign
migrant workers.
    If there is no doubt that it would be useful to set up measures that act in advance and at
the level of the culture of work, by enhancing and rewarding the use of productive methods
that compliance with the dignity of workers, at the same time, it should be noted that the
current configuration of the Quality Agricultural Work Network presents some problems.
    A first problem concerns the voluntary nature of membership in the Network and the
lack of real incentives that can encourage agricultural companies to participate in it. This has
led to an insufficient adhesion to the Network and uneven distribution of participating
companies through the national territory.
    For this reason, one of the goals set out in the Piano Triennale di contrasto allo sfruttamento
lavorativo in agricoltura e al caporalato is to proceed, inter alia, to the “revision of the admissions
requirements, to the establishment of a system of membership incentive, to the review of
the territorial organization of the Network”.45
    The second aspect to consider is the exemption from ordinary inspection checks. Once
passed the preparatory checks for the registration to the Network, enterprises enjoy of a
substantial and permanent exemption from the ordinary inspection checks, that can bring
about the risk to create “an enclave made up of people who ordinarily will no longer be the
subjects of ordinary verification any”.46 Rather, it should be just the possibility of becoming

44 Recchia G.A., L’accesso al lavoro dei migranti economici, in Chiaromonte W., Ferrara M.D., Ranieri M. (eds.),
Migranti e lavoro, il Mulino, 2020, 94.
45 Ministero del lavoro e delle politiche sociali, nt. (6), 18.
46 Sgroi A., nt. (3), 125; Faleri C., nt. (8), 166.



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     Vincenzo Cangemi                                                                                   Italian Labour Law e-Journal
     Roberto Pettinelli                                                                                        Issue 2, Vol. 14 (2021)
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part of an ethical circuit that certifies the respect of decent working conditions to impose a
higher frequency in checks.47
   Finally, it must be considered that there isn’t an automatic reputational advantage deriving
from the participation in the ethical circuit of the Network as compared with other
companies operating on the market, as it can be frustrated by the more or less virtuous
behaviour of different actors in the supply chain, such as consumers and distributors.48
   The measure of the Quality Agricultural Work Network, although meritorious, at present
has not been able to affect successfuly to correct “the distortions that can be found in
agriculture”,49 which result not only from the intrinsic characteristics of agricultural work,
but above all even from the power relations that govern the agri-food chain.50


5. Network contracts in agriculture.

    The measures to prevent and to contrast the phenomenon of illegal gang-master trade
and labour exploitation introduced by Law n. 199/2016 have not led to the expected results,
showing all their structural limitations. The Quality Agricultural Work Network has remained
practically ineffective due to the voluntary nature of the membership which has led to a low
participation. At the same time, as we have seen, it is unthinkable to address the issue only
on a repressive level, because migrants hardly complain the abuses suffered in the face of the
risk of remaining without any protection.
    It is, therefore, necessary to consider also initiatives capable to “remove imbalances and
distortions of agri-food production destined to negatively affect also the dynamics of
agricultural work”.51 The solution could be pursued through the aggregation of farmers in
order to achieve a greater bargaining power within the agri-food chain and to improve the
competitiveness and productivity of the companies involved.52
    The introduction of new digital technologies in agriculture, as well as the transition to
innovative environmentally sustainable production methods, requires substantial
investments that the small producer can hardly bear economically. This, however, remains
the only real way that can allow companies to combine the maintenance of their
competitiveness on the market and the recognition of decent working and economic
conditions.
    In Italy, the Law Decree n. 5/2009, conv. in Law n. 33/2009, introduced the network
contract, an instrument with which “more entrepreneurs pursue the goal of increasing,

47 D’Onghia M., de Martino C., Gli strumenti giuslavoristici di contrasto allo sfruttamento del lavoro in agricoltura nella legge
n. 199/2016: ancora timide risposte a un fenomeno molto più complesso, in Variazioni su temi di diritto del lavoro, 2018, 1,
172.
48 Pinto V., Rapporti lavorativi e legalità in agricoltura. Analisi e proposte, in Giornale di diritto del lavoro e relazioni industriali,

2019, 1, 26.
49 Laforgia S., Il contrasto allo sfruttamento lavorativo dei migranti, in Chiaromonte W., Ferrara M.D., Ranieri M. (eds.),

Migranti e lavoro, il Mulino, 2020, 186.
50 Leccese V., Lavoro, sfruttamento e tutele nella filiera agroalimentare: un itinerario, in Giornale di diritto del lavoro e relazioni

industriali, 2018, 2, 248.
51 Camera dei deputati, Documento approvato, nt. (5)., 26.
52 See Saccomanno P., Il contratto di rete, profili di un’indagine aperta, in Contratto e impresa, 2017, 2, 695.



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     Vincenzo Cangemi                                                                                  Italian Labour Law e-Journal
     Roberto Pettinelli                                                                                       Issue 2, Vol. 14 (2021)
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individually and collectively, their innovative capacity and their competitiveness in the
market” (art. 3, paragraph 4-ter). The entrepreneurs can, on the basis of a common network
program, “to collaborate in forms and in predetermined areas for the exercise of their
companies or to exchange information or services of an industrial, commercial, technical or
technological nature or to jointly exercise one or more activities falling within the scope of
their business”. In this way, network companies gain advantages not only in quantitative
terms, linked to the larger size of the network compared to individual companies, but also in
qualitative terms, due to the sharing of skills and know-how among the participating
companies.53
    Unlike the Quality Agricultural Work Network, an institution in which, as we have seen,
the enterprise can participate mostly in order to obtain the certification of compliance with
decent working conditions and exemption from ordinary inspection activity, the network of
enterprises establishes forms of collaboration in the course of the economic activity that
generate positive consequences on the management of the business activity.
    The creation of the network can be an aid to the governance of change and innovation
processes that have recently affected the agricultural and agri-food sector, with a view to
improving the productivity of companies and their positioning on the market. The latter, in
fact, through the participation to a network of enterprises, would have the possibility “both
to acquire other people’s innovation of which he does not have and to adapt themselves to
an interesting market standard, and to circulate his own technology spreading a standard
already used”.54
    The collaboration and the aggregation between agricultural enterprises is not, however, a
novelty own of the network contract. With the so-called ‘reciprocanza’, that is “the exchange
of labour or services according to usage”, regulated by art. 2139 civil code, the possibility of
sharing the use of the means of production or even the labour force was already envisaged,
on the basis of the peculiarities that distinguish agriculture (small businesses, family farms,
and seasonal crops). It is born as a form of mutual aid between small farmers to satisfy
temporary needs linked to extraordinary increases in productive activity and consists in the
free exchange of agricultural services in a reciprocal way.55 Similarly, with the consortium
contract referred to articles 2602 and ff. civil code, more entrepreneurs may establish a
common organisation for the regulation or for the conduct of certain phases of their
enterprises.
    The network contract, however, has an innovative nature compared to the existing forms
of collaboration between farms. In fact, with respect to the so-called ‘reciprocanza’, network
companies collaborate to pursue a common purpose and do not necessarily have to be farms
or exchange labour for conducting agricultural services. As regards differences with

53 Saccon C., I vantaggi economici per le imprese nel “fare rete”, in Zilio Grandi, Biasi (eds.), Contratto di rete e diritto del
lavoro, Cedam, 2014, 14 and ff.
54 Masi P., Oggetti e relazioni della disciplina agroalimentare nel nuovo secolo tra scienza e diritto, in Rivista di diritto alimentare,

2019, 4, 19.
55 On the topic see Nuzzo V., L’utilizzazione di manodopera altrui in agricoltura e in edilizia: possibilità, rischi e rimedi

sanzionatori, in WP CSDLE “Massimo D’Antona”.IT, n. 357/2018, 15-16; Greco M.G., Relazioni tra imprese e
rapporti di lavoro in agricoltura, in Campanella P. (eds.), Vite sottocosto. 2° rapporto presidio, Aracne editrice 2018, 348-
350.

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     Vincenzo Cangemi                                                                                Italian Labour Law e-Journal
     Roberto Pettinelli                                                                                     Issue 2, Vol. 14 (2021)
                                                                                                            Section: Miscellaneous




consortia, although similarities are undoubtedly greater in this case, network contracts can
“regulate the entire life cycle of the product or service (from production to distribution)”
and aim to achieve “a common goal through a shared strategy”.56


6. The advantages of using the network contract as a way of regulating competition
over working conditions in the supply chain: joint-recruitment and co-employment.

    In the above described context of agricultural producers’ intrinsic economic dependence
on agro-industrial or large-scale retail trade companies, in consideration of the latter’s
oligopsony position in the chain, for the final sale price determination of agricultural and
food products, both fresh and processed, it seems that agricultural producers, rather than
hoping for corrective measures in the market by the legislator (both national and EU), have
no choice but to join forces, in order to impose minimum price standards, which allow not
only the fair allocation of profits, but also a sustainable approach, in terms of transparency
and legality, in the work relationship management.
    In this sense, the European legislator had already foreseen the possibility for agricultural
producers to join forces through the establishment of organisations pursuing specific
common objectives relating to the trading of their commodities, the provision of mutual
technical assistance or the research and development of innovative production techniques,
in order to strengthen their position on the market. The reference is to producers’
organisations and inter-branch organisations for a specific sector, now covered by EU reg.
1308/2013 and regulated in Italy respectively by Legislative Decree no. 102/2005 and by
Legislative Decree no. 51/2015. However, these organisations have ended up functioning
rather sparsely, if not marginally, as their operation is essentially left to the discretion of the
parties involved. Furthermore, they are subject to rather strict requirements, both as regards
their form (a corporation in the case of producers’ organisations, an association in the case
of interprofessional organisations) and as regards the activities carried out, which in any case
do not contemplate forms of joint business activity and can only be made up of agricultural
entrepreneurs and, in any case, in the case of interprofessional organisations, do not carry
out operational activities such as production, processing or marketing of products.57
    Hence the importance of network contract in agriculture. And in fact, beyond the alluvial
legislation in favour of agricultural enterprises to get a greater reactive boost to high market
competitiveness,58 including the specific form of funding for “newly established clusters and

56 Di Salvatore L., Un’introduzione allo studio delle reti di imprese come modello di sviluppo per le aree interne, in Nuove
Autonomie, 2019, 3, 633 nt. 43. See also Russo L., Il contratto di rete in agricoltura, in Rivista di diritto civile, 2015, 1,
186, according to which the networks of enterprises pursue goals that “seem to have a broader horizon than
those that can be pursued with the consortium”.
57 Russo L., ibidem, 192; Mocella M., Reti di imprese e rapporti di lavoro, ESI, 2018, 83. It should be noted, however,

that article 162 of Regulation (EU) no. 1308/2013 provides for a specific derogation for interbranch
organisations for tobacco, olive oil and table olives, assigning them the performance of certain operational
tasks.
58 Russo L., ibidem, 1018 ff.; Costantino L., L’impresa agricola “in rete”, in Genovese A. (eds.), Riflessioni sul contratto

di rete. Profili privatistici e fiscali, Cacucci, 2013, 199 ff.; Costantino L., Il contratto di rete tra imprese nel settore agricolo,
in Rivista di diritto agroalimentare, 2013, 4, 668 ff.

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     Vincenzo Cangemi                                                                   Italian Labour Law e-Journal
     Roberto Pettinelli                                                                        Issue 2, Vol. 14 (2021)
                                                                                               Section: Miscellaneous




networks or those undertaking a new activity” provided for under the EU regulation on
support for rural development by the European Agricultural Fund for Rural Development
(EAFRD) (Reg. EU 1305/2013),59 the greatest potential of network contracts in agriculture
seems to lie in their ability to attract not only agricultural enterprises but also industrial ones,
so as to encourage the establishment of a common purpose (a common interest) that can
generate a virtuous distribution of the value of products among the enterprises involved. In
this sense, the role of the network also appears to be well adapted to the supply chain,
especially the agro-industrial one.60 It is therefore possible (and in a certain sense desirable)
that within the supply chain the transition towards technologically advanced or digital
production methods that ensure higher standards of product quality, health and
environmental sustainability (e.g. the expansion of hydroponic cultivation methods), which
are increasingly requested by those downstream in the supply chain, is completed through
agreements that will involve the network companies in the collaborative or reticular
management of agro-industrial goods processing. Alternatively, the network could be a way
of creating synergies between agricultural enterprises and services companies to facilitate
access to work in the countryside, and between social enterprises and other companies, in
order to integrate vulnerable and disadvantaged people.
    In this sense, it should not be forgotten that the network companies can also benefit from
the organisational flexibility that the two network models envisaged by the 2009 legislator
leave to the discretion of the contracting parties: the network can, in fact, become a legal
entity (even if not a personality) (the so-called subject network – ‘rete soggetto’) or merely
regulate the mutual cooperation between network companies, without creating a new legal
entity (so-called contract network – ‘rete contratto’), leaving, however, in both cases to the
contracting parties the choice of establishing or not an organ and a common patrimonial
fund. The use of the network contract, in fact, allows companies not only to increase their
innovativeness and market competitiveness but also to mitigate the negative consequences
arising from the unpredictability and seasonality of agriculture.
    The second potential inherent in the use of the network contract lies in the power granted
to the network companies to adopt mutual forms of job-sharing of the workforce which, on
one side, allow the same employee to be employed in different cultivation processes
according to the seasonality of the production, sharing labour costs between the companies
and, on the other side, also ensure continuity of employment for the workers employed,



59 The importance of providing such support is found in the possibility of better achieving the objectives of
rural development policy, as such an approach helps operators in rural areas to overcome the economic,
environmental and other disadvantages of fragmentation. It is through the promotion of new forms of
cooperation, such as business networks, which make it possible to organise joint working processes and share
facilities and resources that the activity of small producers can become economically viable despite its small
scale (recital 29).
60 This is, after all, a path suggested by the legislator himself, in in emphasizing the potential of the network

contract to promote a smart and sustainable agricultural and food chain. The policy, outlined in the Strategy
From the producer to the consumer and developed in the National Plan for Recovery and Resilience (so-called PNRR: see
point M2C1 - Circular economy and sustainable agriculture, 117 and 119 ff.), proposes in fact to support a process of
rapid transformation of production methods and technologies used, in particular through digitalization, to
reduce the environmental impact in one of the Italian excellences, promoting green supply chains.

https://doi.org/10.6092/issn.1561-8048/13566                                                                       113
     Vincenzo Cangemi                                                                              Italian Labour Law e-Journal
     Roberto Pettinelli                                                                                   Issue 2, Vol. 14 (2021)
                                                                                                          Section: Miscellaneous




avoiding that agricultural unemployment is mainly paid for by the coffers of the Italian
National Social Security Institution (INPS).61
    This opportunity to share labour can be achieved through two modalities, both of which
are likely to generate a dissociation of the employment relationship: co-employment and joint
recruitment in agriculture, provided respectively by art. 30, paragraph 4-ter and art. 31 of
Legislative Decree no. 276/2003. Apart from the question, which is very debated, about the
difference between the two categories, it can be said, essentially, that co-employment is an
instrument of joint employment of labour and sharing of the relevant professional skills
according to the rules of engagement identified with the network contract in relation to a
specific interest shared by the network companies (the one, in fact, at the basis of the network
contract). On the contrary, the joint recruitment referred to in article 31, more specifically,
is aimed at the agricultural sector and is characterised by the fact that only the recruitment
phase is joint, since after the initial moment the workers carry out the “work services at the
relevant companies”.62 Only if it is carried out within the framework of a network contract,
on condition that at least 40% of the network enterprises are agricultural enterprises, does
joint employment also constitute a hypothesis of co-employment, since it may be adopted in
view of the achievement of the common interest of the network and according to rules of
engagement identified in the network contract itself.63
    In these terms, the shared and combined use of one or more workers for a interest specific
but shared by the network enterprises (the one on which the network contract is based) in
the agricultural sector has the potential to offer forms of mutual sharing of employees’
professionalism and to be a concrete way of attracting regular labour within the agri-food
chain, encouraging continuity of employment and permanence in the vicinity of the
workplaces with positive effects in terms of social inclusion and access to local support
programmes. 64 In fact, it would make it possible to mitigate the negative effects deriving
from the seasonal nature of harvests, which in terms of work lead to a temporary and
precarious nature of the job, as well as to the need for the migrants to forcibly move around


61 However, it should be pointed out that article 30 of Legislative Decree no. 276/2003, which presumes the
existence of an interest in the detachment of the workforce and therefore legitimises the employment of
employees in other companies belonging to the network, is also applicable to agricultural network companies,
as long as the requirement of temporariness is respected.
62 This option is available where agricultural enterprises, including those set up as cooperatives, belong to the

same group or are owned by the same person or by persons related by a family relationship or affinity up to
the third degree.
63 Greco M.G., Il rapporto di lavoro nell’impresa multidatoriale, Giappichelli, 2017, 192; Carinci M.T., Introduzione. Il

concetto di datore di lavoro alla luce del sistema: la codatorialità e il rapporto con il divieto di interposizione, in Carinci M.T.
(eds.), Dall’impresa a rete alle reti d’impresa. Scelte organizzative e diritto del lavoro, Giuffré, 2015, 33.
64 This is an extremely delicate point, with respect to which the sensitivity of the legislator seems, at last, to

have increased. The PNRR, in fact, for the first time, accompanies the identification of specific instruments to
combat undeclared work (see point Reform 1.2: National plan to combat undeclared work) with an awareness of the
necessity to flank sanctioning policies with policies to eradicate the social conditions that constitute “fertile
ground for the infiltration of criminal groups and favour caporalato and labour exploitation in agriculture”. Hence
the important idea of identifying “decent housing solutions for workers in the agricultural sector to overcome
the phenomenon of illegal settlements” (M5C2 - Social infrastructure, families, communities and the third sector), which,
as mentioned above, represent an extremely critical reality. A step forward that is consistent with what is already
foreseen in the Piano Triennale.

https://doi.org/10.6092/issn.1561-8048/13566                                                                                    114
     Vincenzo Cangemi                                                                              Italian Labour Law e-Journal
     Roberto Pettinelli                                                                                   Issue 2, Vol. 14 (2021)
                                                                                                          Section: Miscellaneous




the territory (including outside Italy) in search of work, following the growing season.65 All
these elements, as we have seen, constitute specific risk factors for labour exploitation and
forced labour in agriculture.
   Of course, it is quite clear that the network contract is only one of the many possible ways
to fight against ‘caporalato’. However, if we keep in mind that it is a functional tool for
cutting labour costs and that the fight will only be won when recourse to informal forms of
work becomes economically unviable, then sharing the regular labour costs between network
enterprises, together with the possibility of covering a substantial part of the food-chain, at
least up to the processing companies located close to the production sites, seems could
favour the establishment of ethical forms of food-chain that could lead to a sincere pact with
consumers to adequately remunerate the legality of the production process. This is a first
step on a road still to be travelled.




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https://doi.org/10.6092/issn.1561-8048/13566                                                                                    115
 Vincenzo Cangemi                                                                    Italian Labour Law e-Journal
 Roberto Pettinelli                                                                         Issue 2, Vol. 14 (2021)
                                                                                            Section: Miscellaneous




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 Vincenzo Cangemi                                                                  Italian Labour Law e-Journal
 Roberto Pettinelli                                                                       Issue 2, Vol. 14 (2021)
                                                                                          Section: Miscellaneous




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 Vincenzo Cangemi                                                                    Italian Labour Law e-Journal
 Roberto Pettinelli                                                                         Issue 2, Vol. 14 (2021)
                                                                                            Section: Miscellaneous




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Copyright © 2021 Vincenzo Cangemi, Roberto Pettinelli. This article is released under a
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https://doi.org/10.6092/issn.1561-8048/13566                                                                    118
