New jobs, same old questions Olimpio Stucchi and Silvia Fumagalli In the Gig Economy age, where supply and demand of goods and services are managed via ad hoc platforms and apps, where the work tools meet today’s needs, the “same old questions” remain: have you ever wondered whether those people who make deliveries or provide you with a service are employees or self-employed workers? According to the Court of Milan (ruling dated September 10th, 2018), the workers delivering goods ordered via app, aka “driver – glover”, are self-employed workers. The Court of Milan, under the assumption that every kind of economic activity may be performed by both employees and self-employed workers according to the way in which it is carried out, carefully examined the way the plaintiff worker carried out the service, and decided that he was not subject to the managerial, organizational and disciplinary powers of the “employer”, that is an essential requirement of the subordinate employment. According to the Judge, the fact that the rider, throughout the Company’s app downloaded on his mobile phone, could freely decide “if, when and how much to work” within the calendar and the hour slots established by the undertaking, proves that there was not a relationship of subordination. Instead, such freedom of choice proves that the worker could autonomously organize his work, and this is not compatible with subordinate employment. The ruling of the Court of Milan is therefore in line with a recent decision of the court of Turin (ruling no. 778, dated May 7th, 2018) that, while dealing with a similar case, stated that the claimants were self-employed workers: in fact, the riders, on the basis of their personal needs, could give their availability for the time slots via app, but they were not obliged to do so. In the ever-changing job market, where new professional profiles and specializations constantly come out to meet the society’s new needs, what is not changing is the distinction between self-employed workers and subordinate employees. In order to make such distinction, it is necessary to establish if the worker is subject (or not) to the employer’s managerial, organizational and disciplinary powers, which implicate receiving specific orders and a constant supervision and monitoring activities over the work performances. Such powers, in combination with other “indicators” identified by recent case-law (i.e. complying with working hours laid down by the employer, absence of commercial risk for the worker, the form of payment) is held to be the crucial criteria to distinguish an autonomous worker from a subordinate employees. Therefore, always pay attention to the way in which the job is required and carried out.
