The Court was called upon to rule on several issues, including the refusal by a well-known food delivery company to communicate to the plaintiff trade unions the information required by Art. 1-bis of Legislative Decree of 26 May 1997 introduced by the Transparency Decree and requested by specific communication, dated 22 December 2022
It is anti-union conduct for a company not to provide to trade unions that request it with the information on the use and operation of automated systems, as provided for by Legislative Decree no. 104/2022, known as Transparency Decree.
This was established by Order No. 14491 of the Court of Palermo, dated 3 April 2023, which appears particularly important and significant – as well as for the concrete case – for assessing the impact of the disclosure obligations also regarding the so-called collaborazioni etero dirette (“structured cooperations”) pursuant to Art. 2, paragraph 1, Legislative Decree 81/2015 in general.
The Court was called upon to rule on several issues, including the refusal by a well-known food delivery company to communicate to the plaintiff trade unions the information required by Art. 1-bis of Legislative Decree of 26 May 1997 introduced by the Transparency Decree and requested by specific communication, dated 22 December 2022. In particular, it was requested to establish the anti-union nature of the refusal in question, pursuant to Art. 28 of Law 300/1970.
Art. 1-bis governs the additional information obligations to be provided to the employee if automated decision-making or monitoring systems are used. These are all those tools that, through the collection and processing of data by algorithm or artificial intelligence, are able to generate automated decisions.
The obligation to provide information also exists in the case of merely incidental human intervention, as indicated in the recent Circular of the Ministry of Labour no. 19 of 20 September 2022. The company was using its own algorithm that allows riders to access the app (and thus, to work) based on certain conditions: availability, location, proximity, personal settings, preferences and “other factors”, such as the likelihood of accepting a ride based on previous behaviour.
The company, in the present case, objected to the inadmissibility of the proceedings pointing out, on the one hand, that the riders are not actual employees but self-employed persons within the meaning of Art. 2222 of the Civil Code and, on the other hand, that in fact the principal cannot be considered an employer in the strict sense but a principal of self-employment services (thus lacking standing to be sued under Art. 28 Law no. 300/1970).
These assumptions were immediately refuted by the Court of Palermo which, referring to the consolidated and consistent case law on the point, sanctioned the fact that the relationship between principal and rider can be traced back to the case of structured collaborations referred to in Art. 2, paragraph 1, Legislative Decree 81/2015, as such falling under the application of the discipline (and protections) proper to employment relationships (among many, Civil Cassation, lab. sec., judgment no. 1663 of 24/01/2020).
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Other related insights:
During proceedings for anti-union conduct under Art. 28, Law no. 300/1970 brought by the FIOM CGIL against the Italian branch of a multinational group as part of a collective dismissal procedure due to the cessation of production activities, the Court of Ancona, Employment Section, held that the employer, who omitted the consultation procedure under art. 9 National Collective Labour Agreement (“CCNL“) for workers in the private metalworking and plant installation industry and directly initiated the consultation procedure for collective dismissal under Articles 4 and 24, Law no. 223/1991, carried out anti-union conduct. On 10 December 2021, during a prior meeting, the company management informed the trade unions of the decision taken and immediately initiated the collective dismissal procedure. According to the union, such conduct was contrary to the provisions of Articles 9 and 10 of the National collective Labour Agreement on prior information obligations for companies with more than 50 employees and more than 150 employees. Furthermore, the conduct was contrary to Directive 2002/14/EC transposed by Legislative Decree no. 113/2012 requiring that the firm inform the European works council and the 5 July 2018 supplementary company agreement regarding the content and periodicity of the trade union information and the principles of fairness and good faith in contracts. The action was to remove the effects of the anti-union conduct with the annulment of the collective dismissal procedure, reputational compensation and non-pecuniary damage from discriminatory conduct under art. 28, Legislative Decree no. 150/2011. The Company opposed the action stating it had informed the trade unions about the termination of the company’s activities the moment it knew about it and that the information obligations under the National Collective Labour Agreement and the supplementary company agreement were to be considered covered by the procedure under Articles 4 and 24, Law no. 223/1991, carried out anti-union conduct. The Company concluded that the appeal should be dismissed, and the applicant pay the costs of the proceedings. It added that the action of the trade union was vexatious, it should pay compensation to the defendant, as under Art. 96 of the Italian Code of Civil Procedure. During the trial, evidence from four whistle blowers was examined. After hearing them, the Sole Employment Judge concluded that the appeal should be upheld concerning the alleged violation of the obligations to consult trade unions as set out in the national and company agreements, distinguishing between the information obligations on companies with more than 50 employees and those on companies with more than 150 employees. The Court highlighted the National Collective Labour Agreement distinguishing between cases where the employer must inform the unions if asked, from those where information is an obligation regardless of their request, for companies with more than 50 employees (and up to 150) and expressly provides that the procedures under Law 223/1991 cover the consultation procedures.
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The Court of Florence, in a decree published on 9 February 2021, noted that the legitimacy to bring proceedings for the repression of anti-union conduct provided for by Art. 28 of the Workers’ Statute cannot be applied to the riders’ trade unions since they are not employees.
In this case, the three CGIL regional organisations appealed against a food delivery company, complaining of its anti-union conduct.
The anti-union conduct, according to the plaintiff unions, was based on the company applying a new collective agreement for the sector signed by Assodelivery (food delivery industry association) with Ugl riders. The contract, had been qualified as a “pirate contract“, by the unions, and the Ministry of Labour since it was signed with a compliant union and lacked the necessary representation requirement.
According to the Court, art. 28 of the Workers’ Statute – which entitles the regional branches of national trade unions to take legal action if the employer engages in conduct to prevent or limit the exercise of trade union freedom and activity – is a guarantee recognised within employment relationships. It cannot be applied to trade union organisations of self-employed or quasi self-employed persons.
In the judge’s opinion, the protections of art. 28 of the Workers’ Statute do not apply to riders, as they are not employees but, at most, self-employed workers to whom only the substantive rules on employee salary and contract terms are applicable.
Altri insights correlati:
The Court of Cassation, with judgement No. 88 dated 4 January 2018, ruled that an employer’s decision to change working hours without consulting the trade union delegation but merely providing a notification cannot be deemed anti-union conduct if the employer implemented an agreement already reached between management and labour. In this case, Poste Italiane S.p.A. was sued for anti-union conduct on the assumption that it had changed working hours in violation of the provisions referred to in the National Labour Collective Bargaining Agreement (CCNL) in force, that is without prior consultation with the trade union delegation. However, the Court of Cassation, in upholding the decision of the Territorial Court, pointed out that the company and the trade union organizations reached a specific agreement effective in the case of application of new working hours in the production unit of reference and calling for an obligation to inform the Trade Union Delegation, which was in charge, within five days, to summon a consultation, if necessary. However, in the Court’s opinion, the company complied with the information obligation, since the Delegation remained inactive, with the consequent correct conduct of the company, which complied both with the CCNL provisions and the trade union agreement.
