The natural person agent, parasubordinate work and the employment rite.
Law No. 533/73 introduced into the Italian procedural system the so-called "rito lavoro", a procedure characterised by the principles of orality and immediacy. Point 3 of paragraph 1 of Article 409 of the Code of Civil Procedure, introduced by this Law expressly provides that the following are also subject to the labour procedure
"agency and commercial representation relationships [...] which take the form of continuous and coordinated work, predominantly personal even if not of a subordinate nature."
Therefore, disputes relating to agency and representation relationships are also subject to the labour court if the work performance is characterised by the continuity, from coordination and the prevailing personality (cf. also The agency contract and the employment relationship: distinguishing criteria and evaluation parameters).
A third figure, namely that of 'parasubordinate' work, has thus arisen alongside the already existing categories of self-employed and subordinate workers. It was first elaborated by doctrine, and then transposed by case law itself,[1] to respond to a real need to define those self-employed relationships in which, in fact, the worker is in a position of dependence towards the principal that is less strong than that of a subordinate worker, but certainly much more binding than self-employed relationships. In this way, a category of subjects has been enucleated that is deemed worthy of even stronger protection, which brings them closer in this respect to subordinate workers.
The question arises as to whether only commercial agents acting as natural persons are subject to labour proceedings, or also agents who, although they operate in the form of corporations, have a structure such that the personal element of the service prevails (e.g. single-member companies). According to the most recent case law of the Court of Cassation, they are deemed to be subject to the employment procedure, only disputes involving agents acting as natural personsexcluding all cases of an agent operating in the form of a company, be it a partnership or a corporation, regular or irregular.[2] In a recent ruling, the Supreme Court stated that:[3]
"where the agent is a company or avails itself of an autonomous entrepreneurial structure, the personal character of the service is lost, with the consequence that the relationship can no longer be brought under the provision of Article 409 of the Code of Civil Procedure and, therefore, to the employment rite, since, where the capacity of agent is assumed by a corporation or partnership, the company, even if lacking legal personality, still represents an autonomous centre of legal relations that stands between the partner and the principal".
Jurisprudence also holds that the natural person agent who performs the its own activity using its own personnel, provided that in the relationship the organisational aspect of the agent does not prevail over that of personal performance:[4] Although the personality of the service must be prevalent, it need not be exclusive. On the other hand, parasubordination must be excluded if the activity is carried out according to entrepreneurial criteria such that the agent merely coordinates and directs his collaborators, without performing any promotional activity.[5] (cf. also What is the difference between an agency contract and a business intermediary?)
Parasubordinate workers are subject to the same legal treatment as employees not only with regard to the application of the labour law, but also to the right to the revaluation of labour claims[6] and the substantive legal institution of the invalidity of waivers and settlements relating to the employee's unavailable rights pursuant to Article 2113 of the Civil Code, which we will discuss in the following section.
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[1] Cass. civ. Sec. labor, 1998, no. 4580.
[2] Civil cassation 2012, no. 2158, By far the prevailing case law holds, however, that when the agent is a corporation or makes use of an autonomous entrepreneurial structure, the personal character of the service ceases to exist and the relationship cannot be brought within the scope of Article 409, given that if the capacity of agent is assumed by a corporation or partnership, the corporation, even if lacking legal personality, still constitutes an autonomous centre of legal relations that stands between the shareholder and the principal; Civil cassation no. 2509/1997; Civil cassation no. 9547/2001; Civil cassation no. 14813/2005; Civil cassation no. 6351/2006; Civil cassation no. 15535/2011; App. Florence, 11/04/2007 "Disputes between the agent and the principal fall within the jurisdiction of the labour court if the activity performed has the characteristics of parasubordination, i.e. where the agent performs the activity predominantly with personal labour. This requirement is lacking when the agent performs the activity in the form of a company, even a partnership or an irregular or de facto one, and also when the activity, although performed on an individual basis, is characterised by the prevalence of the organisational moment of the work of its employees and collaborators over the personal contribution.'; Bortolotti, Il contratto di agenzia commerciale, CEDAM, 2007.
[3] Cass. Civ. 2005 No. 14813.
[4] See also Cass. Civ. Sec. lavoro, 1998 No. 14454: which excluded the predominantly personal character of the agent ".that he had availed himself of two employees, a driver, a warehouseman, several vehicles and, above all, no less than six sub-agents, taking on the economic burden of the entire organisation also in terms of remuneration'.
[5] Cass. civ. Sec. II Ord., 22/03/2006, no. 6351.
[6] Art. 429, third paragraph, c.p.c. ".The court, when pronouncing a judgment sentencing the payment of sums of money in respect of employment claims, must determine, in addition to interest at the legal rate, the greater damage, if any, suffered by the employee as a result of the diminution in the value of his claim, sentencing him to pay the relevant sum with effect from the day on which the right accrued."
