The labor market never stops evolving, especially in critical periods such as the one Italy is living in account of the Covid-19 pandemic. On account of the steady decline in the job markets and the huge increase in the demand of food and groceries delivery services, the employment rate of this sector grew by 55% compared to 2019 in accordance with the data communicated by the B2C e-Commerce Observatory. In light of the above, it is not surprising that the issues regarding the contractual conditions of the delivery boys – generally deemed as unfair on account of their formal status of “autonomous workers” – has gained centrality both in the public debate and in courtrooms.
In fact, the real challenge lies in the delivery boys being qualified as autonomous workers as that would imply that they may not enjoy the key rights and protection the labor regulations provide to employees, such as the (1) Right to a minimum wage (equal, at least, to the minimum salaries provided for by the applicable National Collective Agreement); (2) Right to annual leave; (3) Right to sickness and injury allowances; (4) Right to rests and breaks during worktime; (5) Trade union rights; (6) Right to maternity leave; and (7) Protection against unlawful dismissal.
Legal framework in Italy
Currently, a clear and uniform regulatory framework to regulate the working conditions of delivery boys in Italy does not exist. The lack of a clear legislative framework for this activity has given the opportunity to large platforms such as Deliveroo, Just Eat and Foodora to independently manage contracts with their delivery boys. In this scenario, the trend of so-called coordinated and continuous collaboration contracts (an intermediary category not directly referable to self-employment or employment), has been growing widely. The protection provided under this particular kind of contracts, have gradually expanded over the years and now require the principal to pay social security contributions, while the “coordinated” workers are entitled to social insurances. The Law. No. 128/2019 (which converted with amendments the Decree Law No 101/2019), provides some minimum protections standards for the “self-employed workers who perform, on behalf of third parties, activities of delivering of goods, in urban areas and with the support of velocipedes or motor vehicles (…) through platforms, including digital ones”, such as (i) a minimum hourly salary based on National Collective Labor Agreements for similar sectors; (ii) a 10% extra allowance on the hourly salary for deliveries made during night or weekends; (iii) compulsory insurance coverage against accidents at work and occupational diseases.
The signing of a National Collective Labor Agreement by Assodelivery, an association representing the main platforms in the sector (Glovo, Deliveroo, etc.), and one trade union (UGL), gave rise to an intense debate. However, the aforesaid Agreement was not signed by the main confederate unions because it was considered to be detrimental, as it still qualifies delivery boys as self-employed professionals.
Therefore, although the aforesaid law and the aforesaid Collective Agreement have provided for some minimum standards of protection, overall they seem to be unsatisfactory on account of the qualification of the workers as “self-employed professionals”, thus the huge difference in rights protection standards compared to that given to employees. In light of the above, many delivery boys have requested the Labor Courts to declare that their contractual relationship with the Platforms is in the nature of an employment contract, especially on account of the supervision and control exercised by such Platforms, which makes the “autonomy” of the worker substantially fictious.
Italian Courts’ Opinion
The Italian courts have not assume a univocal position on this issue. In some courts, such as the Court of Turin in the judgment 778 of 2018, the judges have held that delivery boys can independently manage their work and have recognized the autonomy of their work. On the other hand, the Court of Palermo have recently recognized delivery boys of the Glovo platform as “employees”, mainly on account of the “disciplinary power” exercised by the algorithm that manages their work. The judges have held that the autonomy left to delivery boys is in fact only fictitious, since the algorithm chooses among the available workers not only on the basus of their availability, but on the basis of criteria such as their rating in the platform. Additionally, the Supreme Court of Cassation in the judgment 1663 of 2020, in the appeal filed by the Foodora platform riders, has extended the discipline of the protections provided to employment contracts also to coordinated and continuous contracts, however such workers have not been expressly qualified as employees of the Platform.
In China, whether delivery boys will be considered as employees of the platform remains undecided. Since the delivery boys have a different working mode with the platforms in China, the court will have to analyze many details for the labor relationship recognition. According to Circular of the Ministry of Labor and Social Security on the Establishment of Labor Relationship promulgated in 2005, the court will comprehensively consider (1) whether the employers and employees are qualified for the eligibility in line with the laws and regulations; (2) whether the various labor regulations and systems provided by the employers in line with the law are applicable to the employees. And whether the employees are subject to the labor management of the employers and are engaged in the paid work arranged by the employers; and (3) whether the work provided by the employees is part of the business of the employers. If the answers to all questions are all “Yes”, the riders will be considered to have established employment relationship with the platform.
Overall, the trend worldwide is towards increasing the protection of the delivery boys, in order to qualify them as Employees of the Platforms thus allowing them to benefit from all the rights this qualification implies.
In this respect, it is noteworthy to mention – considering the similarities of the conditions – on March 16th, Uber UK announced that it would reclassify more than 70,000 drivers in Britain from “freelancers” to employees of the platform, who will receive a minimum wage, vacation pay and access to a pension plan.