The gig economy, with the proliferation of delivery services, has brought to the attention of the public and of the Italian legislator the issue of the protection of riders, the delivery men who deliver food and other small goods on their bicycles and scooters.
Although case law has confirmed the impossibility to qualify riders as standard employees, as they are free to decide to work or not to work, the Italian legislator has been repeatedly urged to intervene with a proper regulation: Law Decree No. 101/2019, confirmed by Conversion Law No. 128/2019, came into force on November 22, 2019 – the Riders Decree – and establishes a minimum level of rights for riders to be granted when entering into a service contract with the platform-based company and that are valid for the entire work relationship.
STARTING TO WORK WITH RIDERS
The platform-based company must provide riders with all information necessary to protect their interests, rights and security.
They must also enter into proper service contracts.
However, the Riders Decree does not specify the content of the information to provide to riders for their protection and whether that information needs to be included in the written service contract.
Failure to comply with such unspecified information obligations would result in the application of administrative fines for the company and payment of an indemnity to the riders, the amount of which would be proportional to their annual earnings from the platform and contingent on the factual circumstances, such as the parties’ conduct and the length of the non-compliance period. But no instructions are provided to calculate the indemnity for riders where information was omitted from the very beginning of the work relationship.
A cautious approach suggests providing riders with printed information as an attachment to their contracts or, at least, information included in their welcome package, along the lines of the provisions laid down for employees in Directive (EU) 2019/1152 on transparent and predictable working conditions.
The Riders Decree delegates to trade unions and employers’ organizations, through collective labor agreements, establishing the criteria for calculating the overall remuneration that take into account the modalities of performing the service and the organization of the platform.
In the absence of the abovementioned collective labor agreement, the Riders Decree points out some minimum requirements that must be met: (i) riders cannot be paid exclusively on the basis of the number of completed deliveries; and (ii) they are guaranteed a minimum hourly remuneration, based on the minimum salary established by national collective agreements in similar or equivalent sectors.
We expect that an implementing regulation will clarify what conditions riders must meet to have access to minimum pay (e.g. a minimum number of completed deliveries), to avoid the paradox of paying, as worked hours, the period in which riders who are logged on the platform to deceitfully refuse all delivery assignments.
Lastly, riders are also entitled to a supplementary indemnity for work performed at night, during holidays or in unfavorable weather conditions, to be established in the service contracts or, in the absence of any relevant provision therein, by a decree of the Ministry of Labor.
THE SAFETY REQUIREMENTS
The safety of riders is the most heartfelt issue that is brought to public attention every time a rider is injured when making a delivery – consider the most recent incident of a Glovo rider who was run over by a hit-and-run driver on December 19, 2019 in Turin.
Under the Riders Decree, it is compulsory for riders to have insurance cover against accidents at work and occupational diseases.
More in general, as to the health and safety at work, riders are substantially equated with employees.
PROTECTION AGAINST DISCRIMINATION
Riders are also granted the same levels of protection against discrimination provided to employees.
Firstly, access to the platform cannot be discriminatorily denied. Secondly, exclusion from the platform and reduction in working opportunities due to non-acceptance of delivery missions are prohibited.
Discrimination of riders is becoming a hot topic in Italy, most recently pointed out with the claim brought by the national trade union CGIL against Deliveroo before the Labor Court of Bologna. The complaint accused the algorithm “Frank”, used to assign the delivery missions to riders, of penalizing those who previously refused assignments due to illness, the need for medical treatment or to exercise their right to strike.
We are just at the first legislative attempts to tackle what appears to be a working revolution in the full sense of the term.
There is still a long way to go to set an organic regulation to protect riders: the involvement of the trade unions and the platform-based company will be crucial to identify all the operative short circuits of the current legislative framework and to provide effective solutions and not just instinctive reactions to public alarms.