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).
Continue reading the full version published on Norme e Tributi Plus Diritto of Il Sole 24 Ore.
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In its ruling no. 1018/2022, published on 20 April 2022, Court of Milan Judge Franco Caroleo, confirmed case law, by recognising the existence of an employment relationship between a rider and a well-known food delivery platform. The ruling recognised the worker a sixth level classification and related remuneration under the Commercial National Collective Labour Agreement (applied to the Company’s employees).
Since October 2018, the relationship between rider and Company was governed by a self-employment contract having as its object services of pick-up and delivery of food and beverages by bicycle, motorbike or motor vehicle. In this case, the provision of work services by the rider was made through a booking system via the app (installed on the employee’s mobile phone). Every Monday the rider made bookings for work sessions for the coming week, selecting the day and time made available by the platform.
Access to the booking was divided into time slots, which the rider could access based on “booking index values” obtained by the worker based on their availability (times when the rider, despite having booked the work session, did not log in to the app in the first 15 minutes from the session start) and participation during the sessions with greater demand for work established by the Company on the days from Friday to Sunday in the time slot 8-10 pm.
Access to the first booking slot (11 am) with higher availability of bookable shifts for the week was only allowed to riders with a maximum value of the above indices. Riders with lower indices could only access the subsequent booking slots (3 and 5 pm) with less availability of bookable shifts.
The full version of the in-depth study was published in issue 20 of Guida al Lavoro of Il Sole 24 Ore.
In its ruling no. 376 of last 23 November, The Court of Florence declared the unilateral terminations made by a digital platform of home food deliveries (the “Company“) from the relationships in place with individual workers (“riders“) ineffective, following a failure to adhere to the National Collective Labour Agreement (the “NCLA“) signed by Assodelivery, the trade association representing the Italian food delivery industry to which the Company belongs, and UGL rider – the trade union.
The matter arose in October 2020 after the stipulation of the NCLA with UGL through Assodelivery, the Company sent a communication to (about 8,000) riders asking them to sign a new work contract as an essential condition for continuing the relationship.
With an appeal filed on 25 February 2021, the trade unions FILCAM CGIL FIRENZE, NIDIL CGILFIRENZE and FILT CGIL Firenze brought an action against the Company opposing the decree under art. 28 of the Workers’ Statute issued on the previous 9 February by which the appeal brought by the same parties for the alleged anti-union conduct of the Company was rejected, which was based on:
The Court of Florence clarified that riders must be considered employees, and the management of the relationship with them must be subject to the relevant rules, including those on termination.
As for the notice sent by the Company, the Court found (i) there was no consultation with the trade unions that the Tertiary Distribution and Services would have been required by the Collective Labour Agreement applied to its employees and (ii) it was intended to simultaneously terminate the relationship with more than 8,000 riders, constituting a “significant change in the company organisation.”
According to the Court, since it was undisputed (because it was uncontested) that some riders equal to or greater than five had prematurely terminated their employment following the Company unilateral change, the procedures provided for by Law 223/1991 should have been used, including “prior written notice (in the absence of rsa or rsu – union representatives) to the trade associations belonging to the most representative confederations at a national level.”
According to the Court, the plaintiff associations fall within the scope of the recipients of the above communication as they are trade associations. Furthermore, each of them has multiple-factor organised and quasi self-employed workers who are members of a confederation such as CGIL, which is representative at a national level.
The Court of First Instance observed that elements such as how the agreement was signed, the lack of discussion between the union and riders, absence of disputes brought by UGL, contract content that excluded UGL from the European Economic and Social Committee and the failure to continue negotiations with other trade unions to stipulate further and different contracts, were “unequivocal and concordant elements in favour of the union’s (UGL rider) unrepresentative nature and the discriminatory nature of the privileges granted to it which were unjustified by the union’s bargaining strength.”
On these grounds, the Court, accepting the union representatives’ appeal, ordered the Company to immediately cease the anti-union conduct, condemning it to initiate the consultation and discussion procedures provided for by the Tertiary Distribution and Services Collective Labour Agreement and the information and consultation procedures under Law 223/1991. In addition, the Company was ordered to publish the full decree text at its own expense and once in some specific local newspapers and pay the costs of the proceedings (including the summary stage) to the plaintiff union.
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The order to immediately cease applying the Ugl rider NCLA remains, to date, limited to the local jurisdiction of the Court of Florence, which has ruled on the matter.
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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.
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The Court of Bologna, by order of 31 December 2020, upheld the appeal brought by three trade unions confederated to CGIL (Filt, Filcams and Nidl) against the company Deliveroo, describing the access conditions to the digital platform as discriminatory.
According to the Court, the work slots booking system penalised those absent from work, without considering the reasons for their absence. According to the algorithm adopted by the company, the score of each delivery rider was reduced when they (i) did not log in to the platform 15 minutes before the start of the session and went to the work area, or (ii) cancelled the booking session with less than 24 hours’ notice. The system gave priority in the choice of shifts to the most deserving delivery riders (i.e. those with a higher reputation ranking).
According to the judge, the programmed algorithm was completely indifferent to the real needs of delivery riders, and ended up indiscriminately penalising those who had decided, for example, to join a strike or were forced to take time off for illness, disability or to care for a sick or disabled child.
It is based on these assumptions that the Court of Bologna ordered the delivery company to (i) remove the effects of discriminatory conduct, (ii) publish the order on its website and an extract in a national newspaper and (iii) pay € 50,000 to trade unions, for damages because the adopted booking system discouraged workers from collective abstention from work, weakening the trade union action effectiveness.
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