Italy: Who is an employee?

In Italy, there are four important definitions to be taken into account of when determining who an Employee is.

The first is the definition provided by art. 2094 of the Italian civil code:

«Employment contract. A subordinate employee is a person who binds himself, for a remuneration, to cooperate in the enterprise by contributing his intellectual or manual work, in the employment and under the management of the enterpriser».

The second is the corresponding definition of a self-employment contract, as established by art. 2222 of the civil code:

«Self employment contract. When a person binds himself to perform a piece of work or render a service for compensation, primarily by his own effort and without a relation of subordination with respect to the principal, the provisions of this chapter apply unless the relationship is subject to particular rules in Book IV».

There are then two further important definitions to be considered. Art. 409 of the Civil Procedure Code states that the Employment Court has jurisdiction not only for controversies between employee and employer but also in the event of a controversy between a commercial agent or another person (not a company) who has a contract with an employee, the object of which is a collaboration, not characterised by a subordinate link, but a continuative and coordinated one. Lastly, art. 1, L. 18 December 1973, n. 877, gives a definition of people working from home, saying that despite the definition provided by art. 2094 c.c., they must be considered as subordinate employees when they utilise raw materials or equipment owned by them or by the employer, even if they are delivered by a third party and when they are obliged to follow an employer's instructions with reference to the way in which they perform their duties, the characteristics and requirements of the job for the practical execution, assembly or entire production of the goods which are the object of the employer's business.

Following the above definitions, judges, firstly, analyse what the intention of the parties was on signing the contract and then analyse the behaviour during the execution of the contract in order to ascertain whether what happened, from a factual point of view, coincided with what the parties had provided in the contract itself. In the event of disagreement, aspects such as the obligation to work to a precise, predetermined timetable, a fixed payment, the place of work and others are taken into account.

Recently, the Sezioni Unite of Suprema Corte di Cassazione (the judge, in Italy, who is responsible for the interpretation of rules) has adopted a new position with regard to these distinctions. In particular, in sentence no. 61 of 13th February 1999, relating to this subject, the Sezioni Unite approached the question, which is frequently debated in employment controversies, of the relevance of the aforementioned nomen juris, that is of the definition given by the parties to the employment relationship.In fact, it often occurs that, after having worked under a contract defined as one of "independent collaboration", an employee may sustain that the relationship actually had the characteristics of subordinate employment. With regard to this subject, courts' decisions have occasionally recorded conflicts relating to what weight to give to the willingness expressed by the parties in the contract.

In the case tackled by the Court, Mr. A.R. worked for the Puglian regional committee of the National League of Amateurs (a peripheral member of the Italian Football Federation) under a contract in which he demonstrated his willingness to establish a relationship of independent collaboration.

He subsequently asked the Pretore (first instance judge for employment disputes) of Bari to establish that, in effect, he had worked under subordinate conditions and to sentence the Regional Committe, the Federation and the National League to pay him the remuneration which had not been made to him.

The summoned parties defended themselves arguing that the stipulation of a contract of independent collaboration between the parties could not be considered as a subordinate employment relationship.

Both the Pretore and the Bari Tribunal (second instance judge for employment disputes) admitted the claim, maintaining that the parties, despite having acknowledged their desire to establish an independent employment relationship, had in actual fact stipulated a subordinate employment relationship, the characteristics of which being the employee's subjection to the regulations of the Regional Committee executives, the monthly remuneration, the inclusion into the staff body and the obligation to observe daily working hours.

Thus, the Sezioni Unite definitely adopted a position supporting the guidelines which negate the importance of the professed willingness with respect to the actual events of the employment relationship.

The Court pointed out that the difference between the nomen juris and the actual content of the relationship may occur in three cases:

a) when the parties, in the contract, make a formal reference to a relationship of independent collaboration in order to avoid the major costs deriving from the subordination system;

b) when the literal expression has misrepresented the true intention of the parties;

c) when the parties, despite having wanted to establish an independent employment relationship when concluding the contract in the executive phase, demonstrate, by means of conclusive facts, having changed their intentions and instead adopted an arrangement of interests corresponding to that of subordination.

In the first case, the Court confirmed that art. 1414, first comma of the Italian Civil Code must be applied, according to which the simulated contract does not have an effect between the parties; in the other two cases art. 1362 Italian Civil Code must be applied, according to which the actual willingness of the parties and their behaviour, even after the conclusion of the contract, has to be referred to. These rules (the Court observed) make it necessary to describe the relationship going by the actual services rendered and by the actual behaviour of the parties.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.