Labour & Law Issues (Dec 2019)
About riders as employees
Abstract
In reminding us of the need for a careful analysis of the different forms in which work using digital platforms can be presented in the present world, in this work the author shows that, although in doctrine we have spoken of "qualifying obsession", the qualifying problem emerges everywhere, always and throughout the world, so it is essential to take up the theme of subordination as defined in art. 2094 c.c. (from which the meaning of the hetero-organization necessarily emerges). In fact, the qualification of the platform as a pure intermediary is certainly possible, but it is not necessary, because there is certainly the possibility that the digital platform is the instrument of a work performance characterized by the destination of the productive result to others, and by the extraneousness of the organization to the legal sphere of the provider. Moreover, since one cannot escape the qualification problem, in the work it is highlighted that this can be dealt with in various ways: on the remedial level, on the contractual one, on the jurisprudential one or on the normative one, and after having examined all of them (also from a comparative point of view), the Author focuses his attention on L. n. 128/2019 (conversion of Legislative Decree no. 101/2019, very different from the text converted into law). In the law we have a general rule, art. 2, par. 1, d. lgs. n. 81/2015, not limited to riders, and we have legislative provisions that provide for minimum safeguards, but the expansive nature of the safeguards that characterizes the new text has, in some respects, further entangled the discipline, with the consequence that the step forward in safeguards there was essentially in the reform of Article. 2, d. lgs. n. 81/2015 (contained in the conversion law), and only secondly in the rules of Articles. 47-quater, 47-quinquies and 47-septies. The work concludes with some considerations of legal policy, and shows that despite all the technology of the platforms, the work of the bicycle messenger (or even motorcycle messenger) is always to earn your living with the sweat of the forehead (and, unfortunately, at the risk of their lives): it is a very old profession, of which only the technical and organizational methods have changed, so that only a serious correction of the legislative intervention contained in the law. n. 128/2015 could promote an organisational model of the activity through digital platforms different from the current one, and more respectful of the rights of the people who work.
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