Unlawful service contracts: the executive power exercised directly by the client through computerized devices is relevant in order to check the service contracts’ lawfulness

Prepared by Francesca Tironi

In line with what has already been ruled in 2019, the Court of Padua recently ruled (3/3/23), in a case in which, in the context of a logistics contract, the forklift drivers employed by the contractor used, for the performance of the contracted activities, some tools owned by the client (in particular, a forklift equipped with a tablet in which the pallet pick-up location and the load exit gate was indicated, with tracking of the movement of the goods through the scanner that the worker used to photograph the bar code).

In such cases, the ruling under examination observes that if the organization of work is essentially based on automated software and tools (in the terms referred to above), the employment relationship must be imputed to the party who has the availability of such systems and of the personal data acquired through them (i.e. the client, in the present case), and the service contract must be considered unlawful.

It should be recalled, on this point, that a lawful service contract is one where one party (the contractor) assumes, with the organization of its own means and business risk, the obligation to perform for another party (the client) a work or service in return for remuneration (in essence, there should be the organization of the necessary means by the contractor; the exercise by the contractor of organizational and managerial power over the workers used in the contract; and the assumption by the contractor of the business risk).

Now, the ruling under examination clarifies that “the system described above, as also confirmed by the ctu carried out, is a highly computerised system … there is no other human mediation“; that “the work to be carried out by the forklift operators and pickers is purely manual and devoid of autonomy“; concluding that “it must therefore be found, in the case under examination, that there is a defect of organization when a decisive factor, such as the computer system, is governed by the contractor“.

On the basis of these findings, the Court of Padua recognized the unlawful intermediation of the services rendered by the worker-members of the cooperative that contracted the service, who had applied to the court to have the constitution of an employment relationship with the commissioning company declared and, therefore, ordered the payment of salary differences in relation to the work performed.

This is, of course, a case – the one analyzed by the ruling in comment – certainly not frequent, but which could become so in view of the ongoing technological evolution. On this point, while there is no question as to the reliability (and completeness) of the jurisprudential reasoning set forth, we cannot avoid considering the advent of the now increasingly frequent digitalization of work (in all spheres) which, perhaps, would impose greater flexibility in investigating certain cases.

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Francesca Tironi

PwC TLS Avvocati e Commercialisti