Doubts on how to measure NCLA «representativeness»
Prepared by Francesca Tironi e Michele Giammusso
With Circular no. 17 of November 19, 2020, the Ministry of Labor and Social Policies goes back to issue of delivery guys (so-called riders) working by digital platforms.
The text reviews the innovative changes made to Legislative Decree 15 June 2015, n. 81, by Law 2 November 2019, n. 128, with which the working activity of digital platform riders was regulated for the first time.
The Law 2 November 2019 n. 128 attributes differentiated protections to riders according to whether their activity is attributable to the general notion of coordinated and continuous hetero-organized collaboration, as per art. 2 of Legislative Decree no. 81/2015 or to that of occasional self-employment pursuant to art. 47-bis of the same legislative decree.
Made clear that the riders, depending on the concrete operating methods, can be classified both in the case of coordinated and continuous hetero-organized collaboration and in that of occasional self-employment, the Circular proceeds to illustrate the two hypotheses.
1) In the event that the riders work continuously and with mainly personal activities, according to executive methods defined by the client through the platform – and regardless the hetero-organization also exercises with reference to the times and place of work – the provision pursuant to art. 2 of Legislative Decree no. 81/2015. Specifically, this rule guarantees the application of the discipline of the subordinate employment relationship. In any case, the possibility is reserved for collective agreements to provide for specific disciplines concerning the economic and regulatory treatment.
2) If, on the other hand, the riders work in the absence of subordination conditions but perform an occasional service, articles from 47-bis to 47-quater of Legislative Decree no. 81/2015 shall be applied. In particular, with art. 47-bis, on the subject of remuneration, the faculty of defining its determination is delegated to collective agreements, according to criteria that take into account the methods of performance of the service and the organization of the client. In the absence of the aforementioned collective agreements, the riders cannot be remunerated on the basis of the deliveries made (the so-called piecework), but they must be guaranteed a minimum hourly remuneration proportionated to the minimum tables established by national collective agreements of similar or equivalent sectors.
The Circular specifies that the collective agreements authorized to provide for a prevailing discipline with respect to the legal one are – both for the hypothesis of hetero-organization and for the hypothesis of self-employment – those stipulated by the comparatively more representative trade union associations on a national level .
A national collective agreement concluded in the absence of the indicated criteria, because it is signed by trade unions of not ascertained greater comparative representativeness in the reference category or by a single trade union organization that does not have a majority in absolute terms, is not suitable for derogating from the law. , so that it cannot produce the effect of replacing the minimum protection discipline with the agreement towards the workers to which it intends to apply, even if registered with the stipulating organization.
These latter assumptions seem to be attributable precisely to the national collective agreement signed last September 15 by AssoDelivery and Ugl Rider, considered, in light of the principles set out in the Circular, not suitable for derogating from the law.
In this regard, some doubts arise about the measurement of the “representativeness” of the contract, given that delivery sector has never been the subject of specific contractual provisions before.
In other words, which sector should we refer to when measuring the greatest representativeness?
According to the Circular, it would seem more correct to refer to the macro-sector of logistics, freight transport and shipping, for which a national collective agreement already exists.
To this, however, it is easy to argue that the objective of the parties is precisely to give birth to a new category through a collective agreement which, in respect of trade union freedom, establishes it and regulates its discipline.
In other words, in the emergence of new kind of production activities and new forms of collaboration, it would be a question of establishing whether or not decisive importance should be given to the trade union parties. This circumstance, to which the Circular does not seem to have paid due attention.
Finally, we also expect a reaction from the trade unions called, also by this new circular of the Ministry, to intervene.
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