The need to update existing labour laws in light of the rapid changes introduced by the digital economy is one of principal issues under the “new ways of working” debate and has made the headlines in many Italian papers, including the leading daily, Il Sole24Ore. We need to use the legal tools that are available to us today, with modifications if necessary, in order to meet the challenges of the so called “gig economy”.
Are the atypical employment relationships governed by digital platforms autonomous or subordinate in nature? This is the crucial question to consider when determining the rights and obligations of the parties to the relationship. First and foremost, it is important to understand that under Italian law, the concept of subordinate work is not what it once was. In fact, it has become increasingly less of a requirement to demonstrate that an employee is subject to the total or near-total control of the employer through explicit commands and directives (and other similar behaviour that has been elaborated by the courts) in order to establish that a subordinate employment relationship exists. The following three examples demonstrate this trend:
- The Biagi Law established that, in restricted cases (which can be extended in future), an “on-call” worker has the right to refuse to work, even when called on by the /employer to do so. This significantly weakened one of the cornerstones of the definition of subordinate work: the right of the employer to require service.
- In 2015, the Jobs Act established that any “coordinated and continuous” collaboration is “automatically” subject to the subordinate work arrangement whenever it provides for the determination by the employer as to the place and time of work. This removes the requirement to perform the complicated qualification analysis that for decades was the established legal practice.
- The recent “agile work” regulations provide that the model of a subordinate work arrangement may be governed by “an agreement between the parties, which can be an agreement to work in stages, by cycles or according to agreed objectives, without precise constraints relating to the place of work, and with the possible use of technological instruments in order to carry out the work.” This is a seemingly perfect definition for the new work types in the gig economy .
Therefore, it is entirely possible, within the existing Italian legal framework, to find a basis upon which to define a subordinate work arrangement in a way that is very different from the old formal structure: an arrangement which may be discontinuous, without a fixed location, not necessarily measured by time, and that can be activated at the discretion of either the worker or the company/employer. As a result, new, flexible work relationships can be considered subordinate. This is the case, if not necessarily from a juridical standpoint, from an economic and social point of view. The crucial issue therefore to resolve is: which features the subordinate work arrangement should have in order to meet the needs of workers and employers today? This impacts in two ways:
- at definition level, finding an easily identifiable, criteria that enables a clear line to be drawn between self-employment and subordinate work
- on merit, determining the minimum protections for the “new” subordinate work arrangement. A modern set of labour rules should consider: minimum wage requirements ( with a baseline set according to if and when the worker is obligated to accept the “call to work”); guaranteed rest periods in proportion to the hours actually worked; insurance coverage for accidents, civil liability and ad hoc pensions, etc.. By contrast, indirect types of compensation and certain protections from dismissals are designed for permanent and full-time work arrangements and would not apply in the context of the intrinsically flexible nature of the gig economy work arrangement.
Italy can take comfort in knowing that other countries are facing similar issues. In Germany the debate on arbeiten 4.0 resulted in a “white book” by the Ministry of Labor (www.bmas.de), but the program of the current German government provides only minimal changes to existing contract arrangements. The governments of the United Kingdom and the Netherlands have set up consultations considering similar issues (minimum pay, rest breaks), but it is unclear if, and when, any change will be implemented. In France, recent legislation has established some minimum rights for those who work through digital platforms (accident insurance, refresher courses, trade union rights), but the legislation does not resolve the question of the workers’ legal status, which has been left to the courts to decide. Analysis of existing legislation, merit choices on minimum protections, monitoring of the debate in other European countries … these are the things that must be considered in order to reach an effective solution. But cultural progress is also necessary: To consider the technology not as an enemy, but as a more intelligent and innovative means of production that can make work both smoother and more productive; in other words, ultimately, more modern.