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18/11/2015

I rapporti di collaborazione organizzati dal committente e le collaborazioni continuative e coordinate ex art. 409 n. 3 c.p.c.

WP C.S.D.L.E. “Massimo D’Antona”.IT – 278/2015



Di prossima pubblicazione su ADL, n. 6, 2015



The Author analyzes the new rules (d.lgs. n. 81/2015) concerning self-employed, coordinated and continuous workers (collaborazioni coordinate e continuative), whose work results to be “organized by the employer”, and then proceeds to illustrate the relevant interpretative hypotheses about their legal definition.

1)According to the first assumption, those contracts maintain their nature of contract for services, relating to self-employment relationships, because the new rules limit their scope to the mandatory application of the employment protection measures to workers, who, nonetheless, remain within the area of self-employment.

2)A dissenting opinion states that those kind of coordinated and continuous self-employment contracts, constitute in reality nothing else than a disguised employment relationship. In this view, the fact that the worker is subject to the organizing power of the employer, means that he lacks any kind of independence as to the manner in which the job has to be done.

3)Lastly, some authors believe that the new provisions (art. 2, comma 1, d.lgs. n. 81/2015) have not modified in any way the notion of the contract of service and the ensuing notion of employment relationship (art. 2094 c.c.). Accordingly, the delegated legislation, has merely transposed in the legal provisions, some of the criteria traditionally applied by the courts in their case law (as for ex. workplace, working time, the strictly personal perfomance of work), usually considered as less important than the control test. These criteria are now given pivotal relevance in the process of ascertaining wether the worker is an employee or a self-employed. The Author declares his preference for the last hypothesis, because is in accordance with the delegated lawgiver's purpose of giving back attractiveness to the employment relationship, both from the legal and the economic standpoint. And that with the aim of reclaiming to the area of the employment relationship those work relationships which are contiguous to the latter and of finally erasing the plague of fake and fraudulent self-employed relationships.

author(s): Santoro Passarelli, Giuseppe
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