10.6092/issn.1561-8048/9705
The essay examines the impact of the Foodora riders case on the Italian qualification system, demanding a new legislative and contractual approach to digital workers.
application/pdf
1561-8048
9705
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en
Alberto Pizzoferrato
Italian Labour Law e-Journal
third category
Platform Workers in the Italian Legal System
Text.Serial.Journal
https://illej.unibo.it/
12
Miscellaneous
2019-07-23
2019-07-22
2019-07-23
2020-09-15
93-98
ILLeJ
Alberto Pizzoferrato
2019/07/23
10.6092/issn.1561-8048/9705
93
Università di Bologna – Alma Mater Studiorum
1561-8048
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third category
en
98
Platform Workers in the Italian Legal System
https://illej.unibo.it/article/download/9705/9483
12
Platform Workers in the Italian Legal System                                      Italian Labour Law e-Journal
Alberto Pizzoferrato                                                                     Issue 1, Vol. 12 (2019)
alberto.pizzoferrato@unibo.it                                                                  ISSN 1561-8048
                                                                 https://doi.org/10.6092/issn.1561-8048/9705




            Platform Workers in the Italian Legal System
                                          Alberto Pizzoferrato*


 1. Who is the employee? 2. The Italian Foodora riders judgements. 3. Towards a third legal
 category of working in the Italian system?


                                                 Abstract

     The essay examines the impact of the Foodora riders case on the Italian qualification
     system, demanding a new legislative and contractual approach to digital workers.


     Keywords: Platform workers, food delivery, legal qualification, third category.




 1. Who is the employee?

     In the Italian legal system, the matter of ‘who is the employee’ is becoming once again
 extremely important in connection with the new ways of working via digital platforms.
 Crowdworking, working on demand or just in time, working for a collaborative economy, all
 foreshadow application scenarios that are difficult to trace back to the traditional role of the
 "employee" and undermine the historical dualism between employee and self-employed,
 recalling the need for a third intermediate qualifying category, such as the one adopted in the
 Anglo-Saxon system (i.e. worker). Such a third category, in the past experimented upon by
 the Italian legal system (project work) or still nowadays applied albeit marginally (voucher-
 based work), should be re-conceived and implemented, assuming the role of reference case
 for situations of economic dependence that don’t match the definition of subordinate work
 but that anyway require a minimal standard of social protection. This case is frequently
 recurring in the work brokered by the digital platforms, where contractual freedom in the
 assumption of tasks and social protection needs coming from the broad availability of the
 services provided thanks to the unfinished supply basin available and the penetrating capacity
 for control and coordination the contractor has access to, which directs, monitors and solicits
 the activity carried out via the app and through text or voice messaging systems.
     On the other hand, the non-applicability to platform workers of any minimum standard
 of treatment, neither in terms of relationship nor in terms of social security, is not compatible
 with the principle of "protection of work in all its forms and applications" set forth by art.


 * Professor of Labour Law, Università di Bologna – Alma mater Studiorum. This article has been submitted to
 a double-blind peer review process.
Alberto Pizzoferrato                                                                           Italian Labour Law e-Journal
                                                                                                      Issue 1, Vol. 12 (2019)
                                                                                                      Section: Miscellaneous


35 of the Italian Constitution. Regardless of the way the relationship is qualified, it is clear
that these workers must be guaranteed the application of a minimum standard of pay, the
right to holidays granted by the Constitution and the EU, accident and pension insurance,
and exemption from the antitrust regulations, therefore the right of association and strike.
"The point is, however, that we need to find ways to operate this extension of the protections - at least the,
constitutional, essential, minimum ones - without interfering with the typical flexibility that is an essential
feature of this form of work organization, not only in the interest of the company, but also in the interest of
the worker"1.
    The work of the Foodora and Deliveroo riders, as well as that of the Uber drivers and of
the plumbers and electricians of Pimlico in the USA or in Great Britain, cannot be considered
effectively autonomous and independent but at the same time it is not possible to regard it
as subordinate work, unless one pays the price of forcing an interpretation, with the effect
of generating differing and conflicting jurisprudential outcomes, fueling applicative
uncertainty and unpredictable protection responses.


2. The Italian Foodora riders judgements.

   An essential, emblematic case is the case of Foodora riders.
   At the beginning of 2018, a group of Foodora riders filed a claim against the company
before the Turin Labour Court2 pleading for the recognition of the subordinated nature of
the employment relationship between the parties and the subsequent provision of the
minimum salary and contributions, and subsequently the dismissal was ruled illegal as it was
unjustified and unfair. The Court, in reconstructing the case in question, found that the
worker was free to apply or not to apply for a specific delivery run depending on his
availability and life needs and therefore was free to either give or withdraw his willingness to
cover the different time slots of each shift and therefore there was no obligation to perform
work, just as, conversely, the employer was not obliged to accept it. Consequently, in the
opinion of the Turin judge, "if the employer cannot demand from the worker the performance of said
work, he cannot consequently exercise the management and organisational power". Since the Court has
not, in this case, found the core trait of the subordinate employment relationship, that is the
being subject to the management and organisational power of the employer, the Court of
Turin ruled that the work relationship could not be qualified as subordinate employment and
therefore rejected every economic request of the applicants.
   In truth the question was more complex since, without prejudice to the original act of
freedom of the worker to offer to work during a certain shift (once the availability was made),
the company carried out an incisive control and monitoring of the activity, and punished
behaviour that does not comply with the instructions given. More specifically the workers,
once the manager has confirmed their shift through a special smartphone application, had to
reach, by the shift start time, one of the three default departure city zones, activate the
application by entering their credentials to login and start the geo-localisation, receive an

1 See Ichino P., Subordinazione, autonomia e protezione del lavoro nella gig-economy, in Rivista Italiana di Diritto del lavoro,

2018, II, 294.
2 Trib. of Turin, 7 May 2018, judgment no. 778, in Argomenti di Diritto del Lavoro. 2018, n. 4-5, 1220, with case

note of Biasi M., Il Tribunale di Torino e la qualificazione dei riders di Foodora.

https://doi.org/10.6092/issn.1561-8048/9705                                                                                     94
Alberto Pizzoferrato                                                           Italian Labour Law e-Journal
                                                                                      Issue 1, Vol. 12 (2019)
                                                                                      Section: Miscellaneous


order notification with the app indicating the restaurant address, go to the restaurant with
their own bicycle, take the products, check the correspondence with the order and
communicate via the appropriate command of the app that the check has been successfully
carried out; then, after placing the food in the box, the rider had to deliver it to the customer,
to the address provided to the rider via the app; finally, he had to confirm through the app
that the order had been regularly delivered. The entire process had to be carried out within
30 minutes from the time provided for picking up the food, otherwise the rider would be
charged a € 15 penalty. During the activity described above the riders were monitored
remotely, receiving reminder calls in case of delays or deviations from optimal road routes.
Furthermore the riders could revoke their availability only before the start of the shift
through a special option of the application (swap), but in this case the system provided for a
warning and the worker was immediately excluded from the possibility of opting for other
shifts , was excluded from the corporate chat and was subject to penalties in the best workers
ratings. The same sanctions (exclusion from corporate chat, exclusion from work shifts,
penalties in merit scores) were also applied to other behaviours not liked by the company,
even when in case of simple complaints or criticisms about management and distribution of
orders by the riders. Therefore, while it is true that there are different subjective reasons that
lead the workers to accept delivery assignments (that are paid € 5.60 including tax and social
security contributions per hour), and if it is true that workers willingly accept those methods
of organization and management of work, nevertheless it is clear that the organisation of
work performance is almost completely in the hands of the company and reduces every space
of organizational autonomy of the worker.
    On the other hand, the Italian legislator, with art. 2 of Legislative Decree no. 81/2015
and art. 15 of law no. 81/2017, has extended the subordinate employment protection rules
to the coordinated and continuous employment relationships based on an exclusively
personal activity "whose execution forms are organised by the client also for what concerns the time and
place" and therefore are not " organized independently" by the worker and said coordination is
not the subject of an agreement between the parties but arises from a unilateral initiative by
the client. The aforementioned provisions received an ambiguous interpretation from the
courts, a part of which (including the aforementioned Tribunal of Turin) considered it to be
apparent rules with no innovative value, since in any case the being subject to the directive
and hierarchical power of the employer is unavoidable for the purpose of applying the
protections on subordinate employment; other court decisions (including the judgment of
the Court of Appeal of Turin3 which amended the Court judgment on Foodora riders),
considered that these rules identify a new type of employment relationship, different from
both subordinate employment and autonomy (self-employment), to which the discipline of
subordinate employment should apply with the sole exception, for unclear reasons, on unfair
and unjustified dismissals; another part4 has set aside the qualification problems, focusing on
the recurrence or not, in the case of home deliveries based on online platforms (Foodinho),
of another feature, that is the entrepreneur's ability to organise the timing and places of work,
to the point of denying it by assuming that "the fundamental choice in terms of work and rest time
was left to the applicant's autonomy, which he exercised when he expressed his availability on certain days

3 Court   of Appeal of Turin, 2 February 2019, judgment no. 26.
4 Court   of Milan, 10 September 2018, judgment no. 1853.

https://doi.org/10.6092/issn.1561-8048/9705                                                                     95
Alberto Pizzoferrato                                                                      Italian Labour Law e-Journal
                                                                                                 Issue 1, Vol. 12 (2019)
                                                                                                 Section: Miscellaneous


and times and not in others" (here again the core concept is that “if I am free to accept or not to
carry out the assignment I am therefore not organized by others”, since they are not bound
by enduring mandatory obligations5).
   Now, it is evident that the intention of the legislator is to introduce anti-fraud provisions
that facilitate the return to the protection of subordinate employment even in those case
where demonstrating a full subjection to hetero-direction is problematic (think of the case
of the secretary that has a VAT registration number like a professional or the merchandiser in
the retail sector) but there is full integration in the production cycle, with stable inclusion of
the work activity in the spectrum of the company's activities, with time constraint and
compliance with the imposed deadlines. While the generalised extension of all the
protections of subordinate employment appears to be unsuitable in areas that cannot be fully
homologated or where there are no conditions for homologation, so much so that in the
concrete application experience it is easy to identify tricks or unlikely argumentative steps to
exclude protective cores incompatible with the real nature of the relationship (such as the
management of dismissals).


3. Towards a third legal category of working in the Italian system?

   To avoid delegating to the judge the improper functions of actually making laws, it would
therefore be better to introduce in the Italian legal system a special type of economically
dependent self-employed work, with its own specific discipline capable of providing actual
answers to social needs (minimum wage, accident prevention and insurance, social security
benefits, time limits, recognition of holidays and rest periods, freedom of trade union
association, anti-discrimination measures) but at the same time capable of creating a rift with
ordinary subordinated employment so as to avoid instrumental uses of remedial tools
unsuitable for the regulatory purpose of a work that remains deeply tied to the requirement
of voluntariness and temporariness of engagement6. By doing so the work through digital
platforms would be no longer hostage to endless judicial battles, which in themselves
necessarily lead to an uncertain and unfair outcome (to be borne by the company if the
subordination is admitted, against the worker if the autonomy), but would acquire an
appropriate systematic placement and guarantee respect for fundamental social rights even
in areas of business characterized by an intensive exploitation of the workforce.
   It is true beyond doubt that carrying out control test or mutuality of obligation test7 or any other
test aimed at verifying that the management and hierarchical power of the employer over the
workers of digital platforms is difficult and also inappropriate, and that it would be more



5 It is clear, in our opinion, that this is an error of perspective since it is not true that the worker is actually free

to renounce or cancel an assignment, given that such refusal results in concrete and very heavy penalties in
terms of exclusion from the professional community and ultimately will lead to be banned from the digital
system, losing all the professional opportunities coming from that social network.
6 See Pizzoferrato A., Organisation, productivity and well-being at work, in Casale G., Treu T. (eds.), Transformations of

work: challenges for the national systems of labour law and social security, Giappichelli, 2018, 1113.
7 On the use of these criteria in the British and Australian legal systems, see Biasi M., Uno sguardo oltre confine: i

“nuovi lavori” della gig economy. Potenzialità e limiti della comparazione, in Labour & Law Issues, 2018, n. 2, 11.

https://doi.org/10.6092/issn.1561-8048/9705                                                                                96
Alberto Pizzoferrato                                                                          Italian Labour Law e-Journal
                                                                                                     Issue 1, Vol. 12 (2019)
                                                                                                     Section: Miscellaneous


profitable to define a new category of "dependent contractor" or "worker"8 in which these
professional figures can find a position and protection9; this direction is desired and
supported by several national initiatives focusing on a variety of issues from territorial
agreements10 to legislation11. All of this without prejudice to the fact that the global dimension
of the digital platform work and the subsequent standardization of the methods of
implementation would require a uniform regulatory approach, at least for large geographical
areas. Unfortunately, the European Union does not seem to be interested in taking action
(as it did not take any further steps after the adoption, in 2016, of the European Agenda for
Collaborative Economy (COM (2016) 356), except for the issues related to the law of
competition and therefore to the implications on the exercise of the business activity coming
from the rise of the Internet Giants on the internal markets12.In the absence of a European
regulatory model of reference, the Italian legislator and the other stakeholders should
therefore take action to guarantee minimal protection measures that currently digital
platform workers lack (considering also the restrictive jurisprudence that we have referred
to), to avoid the paradox that sees low-skilled and fully fungible workers are considered self-
employed, and thus become services or, even worse, commodities.




8 See Davidov G., Who is a worker, in Industrial Law Journal, 2005, 1, 57 and following; Freedland M., Prassl J.,
Employees, workers and the ‘sharing economy’. Changing practices and changing concepts in the United Kingdom, in Spanish
Labour Law Journal, 2017, 6(1-2), 16.
9 See Lunardon F., Le reti d’impresa e le piattaforme digitali della sharing economy, in Argomenti di Diritto del Lavoro, 2018,

2, 379; Perulli A., Lavoro e tecnica al tempo di Uber, in Rivista Giuridica del Lavoro e della Previdenza Sociale, 2017, 2,
212.
10 See the Charter of Fundamental Rights of Digital Work signed by the Municipality of Bologna and some

food delivery chains (Sgnam and Mymenu) in May 2018.
11 See bill no. S-2934/2017 submitted by a group of senators including Pietro Ichino at the end of the XVII

legislature, which has now however expire and was not re-submitted, which aimed to facilitate the activity of
«umbrella companies», relieving them from the need to simulate a subordinate employment contract, by
expressly recognizing the economic and social function of the mutual assistance and protection contract
stipulated by them with the workers they employed.
12 CJEU - Case C-320/16, Nabil Bensalem and Uber France SAS, ECLI:EU:C:2018:221, assimilates Uber to a

transport company since the intermediation service carried out is only a (subsidiary) part of a total service of
which the main element is represented by the transport activity.

https://doi.org/10.6092/issn.1561-8048/9705                                                                                    97
Alberto Pizzoferrato                                                            Italian Labour Law e-Journal
                                                                                       Issue 1, Vol. 12 (2019)
                                                                                       Section: Miscellaneous


                                              Bibliography


Biasi M., Il Tribunale di Torino e la qualificazione dei riders di Foodora, in Argomenti di Diritto del
Lavoro. 2018, n. 4-5, 1220;
Biasi M., Uno sguardo oltre confine: i “nuovi lavori” della gig economy. Potenzialità e limiti della
comparazione, in Labour & Law Issues, 2018, n. 2, 11;
Davidov G., Who is a worker, in Industrial Law Journal, 2005, 1, 57;
Freedland M., Prassl J., Employees, workers and the ‘sharing economy’. Changing practices and changing
concepts in the United Kingdom, in Spanish Labour Law Journal, 2017, 6(1-2), 16;
Ichino P., Subordinazione, autonomia e protezione del lavoro nella gig-economy, in Rivista Italiana di
Diritto del lavoro, 2018, II, 294;
Lunardon F., Le reti d’impresa e le piattaforme digitali della sharing economy, in Argomenti di Diritto
del Lavoro, 2018, 2, 379;
Perulli A., Lavoro e tecnica al tempo di Uber, in Rivista Giuridica del Lavoro e della Previdenza Sociale,
2017, 2, 212;
Pizzoferrato A., Organisation, productivity and well-being at work, in Casale G., Treu T. (eds.),
Transformations of work: challenges for the national systems of labour law and social security, Giappichelli,
2018, 1113.




Copyright © 2019 Alberto Pizzoferrato. This article is released under a Creative Commons
Attribution 4.0 International License




https://doi.org/10.6092/issn.1561-8048/9705                                                                      98
