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:
The Court’s ruling 1 on 2 January 2020, stated that the requirements of art. 19 of the Workers’ Statute to establish union representatives, with the rights referred to in section 3, should not be confused with the principles stated in art. 28 of the Statute (unfair labour practice repression). Art. 19 requires signing of national collective agreements (or provincial or company collective agreements, but applied in the company) or union participation in negotiation of these agreements, as workers’ representatives. Art. 28 only requires the association to be national. The procedure is for cases where protection of the union’s collective interest to freely exercise its prerogatives is challenged. This interest is distinct and autonomous from individual workers’. The Court of Cassation declared the employer’s transfer of 80% of workers registered or affiliated to a trade union from one plant to another to be an unfair labour practice, even if the company’s underlying needs were legitimate. The employer’s conduct was considered to be harmful to the collective interests of the union. In the Court’s view, the statistical element, which reveals a situation of disadvantage for the union, gives rise to a presumption of discrimination. The employer must provide proof to the contrary.
