The Court of Cassation, with order 15557/2019, ruled that a contract can be considered genuine even if it describes in great detail the tasks that the workers involved will have to perform. This is because, for the purposes of integrating the case of illicit labour brokering, it is not sufficient either to provide an analytical indication of the operating methods of the service performed under the contract, or the need to coordinate with the contractor’s employees.
Facts of the case
The case in question originates from the appeal filed by some workers in order to ascertain the violation of Article 29, paragraph 1, of Legislative Decree. 276/2003 in relation to the contract to which they were assigned and, consequently, the recognition of the right to permanent employment with the contracting company. In support of their application, the employees relied on the existence of managerial power in the hands of the contracting company, given the the latter’s predetermination of the times and methods for performing the tasks. According to the workers, the contracting company had no organisational power of service, no business risk, and consequently no disciplinary or hierarchical power.
The decision of the Court of Cassation
Confirming the decision on the merits which had considered the contract to be genuine, the Court of Cassation specified that the predetermination of the implementing procedures, described in the specifications, responded to the need to adapt the performance to the technical characteristics of the service, without, therefore, affecting the autonomy of the contractor in the management of the employment relationship and in the exercise of disciplinary power.
The Court of Cassation has pointed out that paragraph 1 of Article 29 of Legislative Decree 276/2003 in defining the (genuine) tender contract compared to that of provision of labour, governed by Articles. 20-28 of the same decree, is referring to the two main elements characterising it under the rules of Article 1655 of the Civil Code. Specifically, the contractor remains in charge of the exercise of managerial and organisational power over the employees used in the contract and the assumption of business risk by the same.
According to the Court of Cassation, therefore, there is no deviation from this typical scheme:
- the fact that the operating methods of the service are analytically predetermined, since this specificity is functional to the proper performance of the service which is the subject of the contract;
- or the fact that, in the performance of the service, the contractor’s employees receive instructions concerning merely formal questions from the staff employed by the contracting company.
Basically and in accordance with their previous case law precedents, the Judges of Legitimacy have concluded that there is a hypothesis of prohibited intermediation of labour only when it is established that the contracting company carries out a direct intervention device and control over persons employed by the contractor of the service. And the mere coordination necessary for the performance of the contract is not sufficient for this purpose.
