The Supreme Court has ruled that, in the journalistic sector, for the purposes of identifying an employment relationship of a subordinate nature, it must be taken into account the extent of the services and the intensity of the activity carried out which must be such as to permanently involve the employee in the employer organization.
In the case in question, a professional journalist acted against Rai Radiotelevisione Italiana for the recognition of the existence of an employment relationship of a subordinate nature stating that, although she had signed collaboration contracts of an autonomous nature, in concrete she had to comply with the deadlines imposed and the directives given by the employer. The Court, considering the alleged subordination nature unproven, rejected the journalist’s claim.
The Court of Appeal, in reforming the Court’s decision, partially granted the journalist’s appeal. In fact, considering that the continuous involvement of the journalist into the employer organization was decisive for the qualification of an employment relationship of a subordinate nature, the second instance judge reached the conclusion that as a result of the the proof-taking stage the existence of an employment relationship of a subordinate nature should be considered proven with the modality of vertical part time to the extent of 50%.
Rai filed an appeal with the Supreme Court against the Court of Appeal’s decision complaining that the Court of Appeal, failing to take into consideration the collaborations of the journalist rendered in the intervals between one contract and another, had omitted to assess decisive facts for the purpose of ascertaining the non-existence of a relationship of a subordinate nature.
The Supreme Court, re-affirming that subordination is characterized by the fact that the employee is subject to the control and the directorial and disciplinary of the employer, has stated that subordination cannot be excluded simply by the fact that the journalist enjoys a certain freedom and is not obliged to respect working hours. On the contrary, it was decisive the fact that the journalist was always available and ready to comply with the employer’ directives and instructions.
In conclusion, recalling principles already affirmed with reference to the journalistic work (Supreme Court No. 8068/2009), the Supreme Court ruled, that for the purpose of identifying the employment relationship of a subordinate nature, it must be focused the attention on the extent of performance and the intensity of collaboration, which must be such as to entail the permanent integration of the employee in the employer organization. Such examination, in the case of multiple collaboration contracts interspersed in time, must be carried out over the time frame of the actual performance of the relationship in the period indicated by the contract, since the average temporary activity provided remains irrelevant. (Supreme Court’s decision dated July 14, 2021, No. 2009).
Avv. Guido Brocchieri
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