The legal angle, the expert replies
by the Association in collaboration with theAttorney Maria Rita Famà
Members who need to contact a lawyer or need further clarifications can contact their sectional president
THE ISF AND SOCIAL SECURITY EXPENSES
It should be noted that the figure of the ISF is a figure not envisaged by the civil code, therefore this professional figure is often compared, improperly, to the figure of the commercial agent.
This juridical collocation, however, is in evident contrast with the juridical recognition of the figure of the ISF made by the Legislative Decree 30.12.1992 n.541. The aforesaid provision explicitly clarifies that the ISF cannot be considered a commercial agent, having the task of advertising to the doctor the characteristics of the drug it represents, in addition to another series of tasks that have nothing to do with marketing.
This premise, for social security purposes, is by no means indifferent as there are two possibilities.
The first consists in registering with the Chamber of Commerce and consequently with Enasarco (compulsory registration), this when considering the ISF as a "commercial agent".
The category of commercial agents is the only one subject to two distinct mandatory social security treatments: Enasarco and Inps.
The INPS, in the management of merchants, despite being born after the Enasarco, is considered the main form of social security, while the Enasarco is defined as supplementary social security.
The second, i.e. the alternative to being considered an "agent", consists in being an "independent consultant", which requires the opening of the VAT number and registration with the INPS separate management (here registration with Enasarco is only optional), by signing a "professional consultancy" contract.
It is precisely the second possibility that is most in line with the legal figure of the ISF, which is not a commercial agent but falls within the unprotected intellectual professions, as there is no related professional register.
In fact, the ISF is not a commercial agent if it provides information on class A, B or H ethical drugs, even if it can be if it provides information on phytotherapeutic, nutraceutical, homeopathic, cosmoceutical drugs, etc.
It should be noted, however, that the characteristics of the professional performance of the ISF are characterized by the atypical nature and that this atypicality almost certainly originates in the absence of a related professional register, effectively leaving the ISF without specific legal protection.
Logically, therefore, the burden of social security contributions at Enasarco would only have a supplementary, or optional, nature, so the ISF continues to be an obligatory INPS entity, even if under separate management.
Fundamentally, Enasarco is very similar to life insurance.
As mentioned, the Enasarco Foundation is a supplementary social security institution for INPS benefits, in the sense that it provides agents and sales representatives with a supplementary invalidity, old-age and survivors' pension to that established by law no. 613.
According to the provisions of the articles 1 and 2 of the Enasarco Regulation, all subjects attributable to the cases referred to in articles 1742 and 1752 codes. civ. (or the "agents"), who operate on the national territory. Italian agents and trade representatives who operate abroad in the interest of Italian principals are also required to register.
The obligation to register in the pension fund concerns agents who operate individually and those who operate in companies or in any case in association, whatever the legal form assumed.
Enasarco, with Resolution 18 February 2000, n. 2/2000 (approved by the Ministry of Labor and Social Security, in agreement with the Ministry of the Treasury, with a press release dated 5 July 2000, reported in the Official Gazette no. 197 of 24 August 2000), launched new amendments to the Foundation's Regulations which essentially consist in the repeal of the reference to enrollment in the Roll of sales agents and representatives, which therefore ceases to be a condition for enrollment in Enasarco.
Enasarco has thus established the new rule: there is an obligation to register with Enasarco, with consequent protection in terms of social security, in the presence of a service that has the characteristics of the agency contract, even if the intermediary concerned is not registered in the Register of agents and sales representatives, held at the Chamber of Commerce.
This amendment by Enasarco (which implements the Community Directive n. 86/653/EEC regarding commercial agents, as well as the Judgment of the European Court of Justice of 13 July 2000 and when established by the Court of Cassation with the judgment of 16 May 1999 n. 4817) establishes the full validity of agency contracts stipulated through an agent not registered in the Register held by the Chamber of Commerce, despite the contrast existing between the national legislation (Articles 2 and 9 of Law No. 204/1985) and the provision of Community legislation.
In other words, companies that use the services of agents not registered in the role of business procurers must register them with Enasarco and pay the due contributions, if the services of these subjects are no longer occasional.
The Enasarco contribution obligation therefore applies only in the presence of a service that has the characteristics of the agency contract.
In support of the above, the Enasarco Foundation itself clarifies that, based on Resolution no. 2/2000, mentioned above:
"The principal companies must compulsorily register:
• Agents operating on an individual basis
• Agents set up as joint stock companies (spa, srl, limited partnership by shares)
• partners with unlimited liability and who actually carry out activities of
agency, in the case of Agents set up as partnerships
• financial advisors.
The obligation to register is the responsibility of the Company and arises when it grants an Agency or Commercial Representation mandate. Upon initial registration, the Foundation opens a personal account in the name of each individual Agent into which payments made by all principal companies will flow. At the request of the interested party or his delegate, the Foundation issues the Agent the certificate of registration with Enasarco.
Who must NOT be a member of the Foundation
All those who carry out an activity which, although aimed at the promotion/conclusion of contracts, is implemented without the necessary requisites of stability and continuity of the relationship with the Company and without assuming the economic risk on their own, as envisaged by Articles 1742-1752 of the Civil Code regarding agency contracts.
Therefore the following must NOT be registered:
• the mediators
• business finders
• scientific propagandists e pharmaceutical informants
• editorial propagandists
• the custodians and consignees of products
• insurance agents
• real estate agents
• non-administrator or limited partners of partnerships
• in general, all those who in partnerships limit themselves to receiving the profits of the business without participating in the agency business.
The Enasarco legislation does not apply to these professionals and are therefore excluded from the Foundation's social security treatment. If a subject performs multiple functions (for example, simultaneously carries out agency activities and that of goods warehouse), the orientation of the jurisprudence and of the Foundation is to identify the correct legal connotation based on the prevailing activity.
It is therefore Enasarco itself that believes that the ISF is not subject to the Enasarco contribution, it is and therefore remains obliged to pay the INPS contribution, and can only subject itself to the Enasarco contribution in a supplementary manner.
With regard to the specific question concerning the possibility of reunification with the INPS of the contribution paid to Enasarco, this is impossible since the Enasarco social security treatment has a supplementary nature and not a substitute for the compulsory general insurance.
For the right to reunification, the prerequisite is that, pursuant to law no. 29/1979, these are forms of social security replacing the compulsory general insurance, while the Enasarco social security treatment has a supplementary nature as expressly indicated in art. 2, first paragraph, of the law n. 12/1973 (See Court of Appeal of Florence n. 222 of 18.7.2000).
Already the art. 29, paragraph 2, of the law n. 613/1966 had attributed the same supplementary nature to the social security treatment reserved for agents and sales representatives, so re-proposing the problem today in relation to the ISF appears superfluous, given that if the ISF performs the duties of a real scientific informant, not being qualified as an "agent", it is not even a subject obliged to pay Enasarco contributions.
The ISF is not a commercial agent if it provides information on class A, B or H ethical drugs, but it can be if it provides information on phytotherapeutic, nutraceutical, homeopathic, cosmoceutical drugs, etc.
In any case, the real nature of the ISF is scientific, it is precisely a scientific informant, as required by the DL 30.12.1992 n. 541.
Not being a commercial agent, therefore, he is not an obliged Enasarco subject.
The Enasarco contribution is a mere faculty, which cannot be imposed, not even by the employer, remaining obligated by law only and exclusively to the INPS, any commission contracts with provision for an Enasarco contribution, could even be considered irregular if the ISF only carries out scientific services.
In any case, the ENASARCO contribution does not exclude the obligation to register with INPS with the relative contribution.
THE RETURN FROM MATERNITY
Pursuant to article 56 of 26.03.01 n.151, female workers have the right to keep their job and, unless they expressly give it up, to return to the same production unit where they were employed at the beginning of the pregnancy period or in another location in the same municipality, and to remain there until the child is one year old; they also have the right to be assigned to the duties most recently performed or to equivalent duties, as well as to benefit from any improvements in working conditions, provided for by collective agreements or by law or regulation, which they would have been entitled to during their absence.
The provision, therefore, translates into an express prohibition of the employer to modify the employment relationship under a double profile, the place of execution of the employment relationship and that of the duties performed.
Non-compliance with these provisions is even punished with an administrative sanction, which therefore makes the protection provision mandatory and as such mandatory.
The European Court of Justice has recently clarified that the adoption of preparatory measures for a decision to dismiss a female worker due to pregnancy/or the birth of a child in the period from the beginning of the pregnancy to the end of the maternity leave is contrary to directive no. 92/85/EEC, concerning the implementation of measures for the improvement of the safety and health at work of pregnant workers, those who have recently given birth or are breastfeeding. This decision is also defined as contrary to directive no. 76/207/EEC, concerning the implementation of the principle of equal treatment between men and women as regards access to work, training and professional promotion and working conditions.
According to the ruling on the merits, the transfer of the worker upon return from maternity leave is illegitimate even if the pregnancy ended with the birth of a stillborn child (Court of Milan 06 July 2002).
The violation of this rule implies an absolute nullity of the provision of modification imparted by the employer, with the consequent inability to produce any effect.
From this clearly follows the right of the working mother to maintain the same workplace and the same duties.
It follows that in the case of the ISF, the expansion to other provinces is completely illegitimate, because it corresponds to the modification of the place of work, and produces greater inconvenience in the performance of its activity.
To this it should be added that the duties most recently requested must also be equivalent to those previously held.
The new tasks that envisage a target wholly unrelated to professional skills and to the same corporate purposes, such as the radical modification of the production line, are to be considered a change of duties, and as such the provision that orders them is to be considered completely illegitimate, if it is suitable for dispersing the wealth of scientific and personal knowledge acquired during the previous activity.
LEGITIMACY OF ENASARCO CONTRACTS FOR THE SCIENTIFIC REPORTER OF THE DRUG?
The lack of a professional register makes it more difficult than ever to draw the line between scientific information for the purpose of correct drug dissemination and representation aimed at the sale of the drug.
Even the practice is evolving more towards commercialization than towards information…
Legislative Decree No. 541 of 30.12.1992, which came into force in January of the following year, as is known, regulates the role of scientific information in Italy and the informant is entrusted with the delicate task of publicizing to the "doctor" the characteristics of the drug he represents, and which the pharmaceutical company he employs intends to commercialize.
Article 9 expressly states that "The activity of scientific representatives is carried out on the basis of a single, full-time employment relationship".
The reference to a subordinate employment relationship is clear.
With the Legislative Decree 24.04.2006 n.219, the content of the activity of scientific representatives is reformulated in article 122.
In paragraph 3 of the aforementioned article, it is reported that “the activity of scientific representatives is carried out on the basis of an employment relationship established with a single pharmaceutical company. By decree of the Minister of Health, on the proposal of AIFA, derogations from the provisions of the previous period may be envisaged, due to the size and characteristics of the companies."
It is clear that, although reference is always made to an employment relationship, the term "unique and full-time" characteristic of subordinate work is no longer used and a derogation from the provision of a relationship established with a single pharmaceutical company has even been introduced.
This presupposes the possibility of stipulating different types of contracts and therefore the establishment of different types of employment relationships.
Jurisprudence apparently doesn't help us...
A sentence of the Court of Cassation (19/08/1992 n.9676) even speaks of "propaganda activity of medicinal products" assimilating the scientific medical informant to the scientific propagandist and expressly states that "The activity of the medicinal propagandist (also defined as scientific propagandist or medical-scientific informant) can take place both in the context of the self-employment relationship and in that of the subordinate employment relationship, depending on whether the performance of the activity, substantially identical in both cases, is characterized zzi - for the modalities of its development, since the expressions used by the parties have only indicative value - as a mere result or as a provision of working energies with the insertion of the propagandist in the entrepreneur's production organization and subjection to the provisions imparted by the latter."
It is not really clear what the form of self-employment would be, also because this sentence is prior to Law 541/92 which, as mentioned above, referred to a full-time employment relationship and the same sentence expressly establishes that "From the aforementioned activity – which (carried out autonomously or subordinately) consists in persuading potential customers of the opportunity to purchase, informing them of the product and its characteristics, but without promoting (if not marginally) the conclusion of contracts – the agent's activity differs, which, in the context of an obligation not of means but of result, must also achieve the promotion of the conclusion of contracts, since their remuneration is directly connected and commensurate with these. “
In fact, clearly excluding the fact that we are dealing with agency relationships, it remains difficult to classify the Scientific Representative with an ENASARCO contract, which is in fact the pension fund of agents and sales representatives.
Of course, the introduction of the figure of the ISF in the Commercial Marketing/Sales Functional Area of the new CCNL for the category greatly facilitates the application of these contracts.
REQUIREMENTS OF THE SCIENTIFIC REPORTER OF THE DRUG
The ISF profession has undergone profound changes over the last 30 years.
Following Directive 92/28/EEC concerning the advertising of medicinal products for human use, Legislative Decree No. 541 of 30.12.1992 was issued, which entered into force in January of the following year.
Thus, the role of scientific information in Italy is institutionalized and the informant is entrusted with the delicate task of publicizing to the "doctor" the characteristics of the drug he represents, and which the pharmaceutical company he depends on intends to commercialize.
It is now clear therefore that the scientific rep is the only intermediary interlocutor between the manufacturing company and the health care provider.
The law requires the possession of a degree in medicine and surgery, biological sciences, organic or biological chemistry, pharmacy, chemistry and pharmaceutical technology.
With a view to scientific evolution, the law also provides that "the Minister of Health may, by decree, recognize as suitable, for the purposes of this article, other degree diplomas or other university-level diplomas."
However, the law does, without prejudice to "situations regularly in place on the date of entry into force of this decree".
This is because it is a general principle of our legal system that the laws can only provide for the future and cannot affect acquired rights, so that an informant, who practiced before 1993, can continue in the exercise of this activity, even if in possession of only a secondary school diploma or other unrecognized suitable degree.
However, given the important role recognized to scientific information with this law, the legislator requires pharmaceutical companies to give reps "adequate training, so as to be in possession of sufficient scientific knowledge to provide precise and as complete information on the medicines presented."
The qualification of the scientific representative must, in fact, be such as to allow him to communicate effectively with the healthcare professional to whom he represents the drug, because the representatives "must report to the scientific service pursuant to art. 14, on which all the information on the side effects of the drugs depends, attaching, where possible, a copy of the reporting forms used by the doctor pursuant to art. 1 of the decree of the President of the Republic 25 January 1991, n. 93”.
The word “must” leaves no room for any interpretation.
Various ministerial decrees followed, which recognized other qualifications as suitable for the exercise of scientific information, until the EEC intervened again with new directives concerning medicines for human use and the code of ethics (2001/83/EEC and subsequent) and directive 2003/04/EEC, to which Italy adapted with delay with Legislative Decree 24.04.2006 n.219.
Article 122 reformulates the content of the activity of scientific representatives and adjusts the necessary requirements.
The first novelty is that scientific information is also aimed at pharmacists.
The article then resumes the old formulation of "subject to situations regularly in place on the date of entry into force of this decree" and are, therefore, recognized as suitable qualifications, other degrees or specialist diplomas.
However, it is immediately clarified that article 122 does not reopen total amnesties on the possession of the requirements of a scientific informant, but always refers to those already remedied with law 541/1992.
A different interpretation would lead to the absurd conclusion that the legislator would have officially allowed the violation of Legislative Decree 541/92. The legislator, on the other hand, continues to safeguard those who, before the entry into force of the aforementioned Legislative Decree 541/92, had legitimately exercised the activity of scientific information on the drug.
To date, without prejudice to the situations already in place until 1992, the scientific representative must possess one of the following degrees:
a) degree in natural sciences, pursuant to the law of 19 November 1990, n. 341;
b) all specialist degree courses, pursuant to the decree of the Minister of University and Scientific and Technological Research November 3, 1999, n. 509, or master's degree, pursuant to the decree of the Minister of Education, University and Research 22 October 2004, n. 270, belonging to the classes:
1) class 9/S – Class of specialist degrees in medical, veterinary and pharmaceutical biotechnology;
2) class 68/S – Class of specialist degrees in natural sciences;
c) all degree courses, pursuant to the decree of the Minister of University and Scientific and Technological Research November 3, 1999, n. 509 and the decree of the Minister of Education, University and Research 22 October 2004, n. 270, belonging to the classes specified below, provided that the exams in pharmacology, pathology, toxicology, pharmaceutical and toxicological chemistry, pharmaceutical technology and legislation have been passed.
1) class 1 – Class of degrees in biotechnology
2) class 24 – Class of degrees in pharmaceutical sciences and technologies.
Finally, the obligation to report on the effects of drugs to the scientific service and to the head of the pharmacovigilance service of the pharmaceutical company on which they depend remains.
THE SALE OF THE COMPANY BRANCH SEEN FROM THE SIDE OF THE ISF
Thanks to the contraction in pharmaceutical spending and the proliferation of generics, the large pharmaceutical companies have decided to make ends meet in their own way ... by cutting heads. In fact, for a couple of years there has been a substantial streamlining of the ranks of scientific representatives within large companies.
It goes without saying that if Italian law is today (or so it is said) in favor of the worker, it is true that once the law was made, the deception was found…
There are many possible paths to take for mass layoffs, mostly one followed: the transfer of employment relationships from one company to another, usually a service company, which serves as a more or less capacious container for the unfortunates.
The transfer takes place formally through a transfer of the company branch which, pursuant to current legislation (art. 2112 of the civil code) also involves, among other things, the transfer of all employment relationships.
Article 2112 of the Civil Code means by company transfer "any operation which, following a contractual transfer or merger, involves the change in the ownership of an organized economic activity, with or without profit, pre-existing to the transfer and which retains its identity in the transfer regardless of the type of negotiation or the provision on the basis of which the transfer is implemented including usufruct or the lease of the company" and by company branch the transfer of part of the company "understood as a functional articulation of an organized economic activity, identified as such by the transferor and the transferee at the time of its transfer". Article 2112 of the civil code further establishes that, in the event of a company transfer, the employment relationship continues with the transferee (the purchasing company) and the employee retains all the rights deriving from it.
That is, once the transfer of the company has taken place, the employment relationships existing before the transfer continue with the new owner without the need for the consent of the workers, with the effect that each worker can assert the rights accrued previously and exercisable against the transferor against the new owner (Civil Cassation, labor section, 07 December 2006, n. 26215).
Indeed, the article establishes that both companies (assignor and assignee) are jointly and severally liable for all the credits that the worker had at the time of the transfer.
However, the law allows the worker to release the transferor from the obligations deriving from the employment relationship through the procedures envisaged in the event of an agreement on labor matters (and therefore with the intervention of the unions or the employment office).
This, which appears to be an exception to the rule, is in fact the rule.
In fact, it usually happens (and has happened) that the top management find an agreement with the unions (which in the end represent not only the outgoing workers but all of them) and so the workers find themselves, for their part, having to free the transferring company (which is generally the most solvent) in the face of an apparently certain job and in a less solid company.
Furthermore, if it is true that the transferee is required to apply the economic and regulatory treatments provided for by the collective agreements in force at the date of the transfer (unless they are replaced by other collective agreements applicable to the transferee's company) it is nevertheless true that the same is not obliged to continue the exercise of the acquired business branch, with the paradoxical consequence that the case law has not considered "in fraud of the law, nor entered into for an illegal reason ... the contract for the transfer of the company to a person who, due to his entrepreneurial characteristics and based on concrete case, makes it probable that the productive activity and employment relationships will cease" (Civil Cassation, labor section, 16 October 2006, n. 22125).
Which means that the company that buys the branch can also cease the activity the following month, without having to account to any worker….
A small protection in favor of the worker is in this sense dictated by Directive 12/3/2001 n.23 01/23/EC (Directive of the Council concerning the approximation of the laws of the member States relating to the maintenance of workers' rights in the event of transfers of undertakings, establishments or parts of undertakings or establishments) which establishes that if the employment contract or employment relationship is terminated because the transfer involves a substantial change to the worker's working conditions, the termination of the employment contract or of the employment relationship is considered to be due to the responsibility of the employer.
However, the provision is difficult to enforce.
Normally, when a large company – such as a pharmaceutical company – decides to transfer a business branch, many workers are involved.
To this end, article 47 of Law 428/90 (and subsequent amendments) expressly provides that in the event of company transfers or part of them in which more than 15 workers are employed overall, the company must carry out certain procedures for consulting the trade unions in order to protect employment security.
But in recent years, in the face of an ever stronger acquisition of power by the trade unions, we have witnessed an increasingly less effective protection of the workers concerned and the imposition of trade union intervention carried out by the legislator has in fact served the political growth of trade union power, but has proved to be a handicap for the individual worker, who has seen his position treated exclusively as a number, without any regard to his personal history, unable to assert his reasons in the face of a more or less correct experiment of pre-established procedures by the law.
On the other hand, the contract with which the so-called "outsourcing" of services is carried out, where these do not integrate a branch or part of the company in the senses indicated above, is not attributable to the concept of business transfer: in such cases "the transfer affair, in terms of employment relationships, must be qualified as a transfer of the related contracts, which requires the consent of the transferred worker for its completion" (Civil Cassation, labor section, 16 October 2006, n. 2 2125).
This ploy is generally accompanied by a co-promotion contract between the transferring company and the transferee company of the employment contracts.
Co-promotion occurs when the promotion (scientific information, presentation, advertising and sale) for the same medicinal product, with the same brand name, is carried out simultaneously by two companies, one of which is the holder of the marketing authorisation.
In this way the company does not sell the branch, but, in fact, fires all those who work there with the placid good of the same.
In such cases, normally the transferor company submits to the worker a small bonus and an offer of a new job, whether stable or not, so as to obtain consent to the assignment, but also a real release from the worker for any claim relating to the employment relationship.
In general, the worker, in order to avoid mobility, especially in areas where unemployment is prevalent, such as the South for example, prefers to agree to move to the new company, freeing the old company from any accrued and unpaid burden.
If it goes well, the worker has a new job, if it goes badly he will no longer be able to claim against the old company.
Does the ISF have working hours? THE OPINION OF OUR LEGAL AVV. MARIA RITA FAME
The regulation expressly refers to a number of workers who, due to the activity they carry out, do not have a predetermined timetable by the company, because the timetable is determined from time to time by the worker himself. Which means that the company cannot interfere with the activity of this job
Does the ISF have working hours?
In our legal system, Legislative Decree 66/03 delegates the definition of average working hours to the National Collective Labor Agreements, which, however, cannot exceed 48 hours per week, including overtime hours, with reference to a working period not exceeding four months.
The National Collective Bargaining Agreement for the Chemical and Pharmaceutical Industry, applicable to Pharmaceutical Representatives, in Art. 8 (Working hours) establishes, among other things, that the average length of working hours, including overtime hours, cannot exceed the limit of 48 hours calculated as an average, considering the technical and organizational needs of the sector over a 12-month period.
It also establishes that the workforce must be sized according to the actual production, work and plant safety requirements in order to achieve the rigorous implementation of the contractual working hours, allowing the enjoyment of holidays, public holidays, rest periods due, also taking into account the average absenteeism due to morbidity, accidents and other absences.
It is further agreed that the service provided beyond the average weekly working time determined in 247.5 working days per year, assumed equal to eight hours a day, gross of public holidays and holidays, is to be considered excess.
The average weekly working time is 37 hours and 45 minutes.
Services exceeding the average weekly working hours and overtime are compensated, in the relevant month, with the wage increases provided for by the National Collective Labor Agreement, with one of the following options:
-50% of hourly salary quotas and 50% of compensatory rest
-100% of compensatory rest
-100% of hourly salary quotas
Furthermore, it is envisaged that the use of excessive or extraordinary services must be of an exceptional nature and must find objective justification in essential, indeferrable needs, of temporary duration and such as not to allow for correlative workforce sizing.
However, it is established that “ In relation to the provisions of article 16, paragraphs 1 and 2 of Legislative Decree no. 66/2003, it is agreed that external workers, insofar as they are similar to traveling salesmen or salesmen, are included in the derogation treatment from the regulation of the weekly working time.
It is also agreed to assimilate these workers to the personnel referred to in paragraph 5 of article 17 of Legislative Decree no. 66/2003 as regards the non-application of the provisions of articles 3, 4, 5, 7, 8, 12, 13 (relating, among other things, to working hours, overtime, daily rest, breaks).”
It would therefore seem from the tenor of the provision that the ISF has no timetable and, therefore, as now happens in the majority of cases, is forced to work until late in the evening without any recognition of overtime.
Even INAIL, for insurance purposes, considers any accident that occurs at the ISF as occurring during the performance of one's work activity (and this regardless of where it occurred).
Indeed, the aforementioned article 16 of Legislative Decree 66/03 introduces exceptions to the regulation of working hours, but which however are mandatory and that is, they do not allow analogical applications, i.e. they cannot be applied except to the cases considered therein.
The ISF is not mentioned and, therefore, the reference made by the National Collective Labor Agreement is, in the opinion of the writer, void due to contrary to mandatory law.
The subsequent article 17 of Legislative Decree 66/03, also referred to by the CCNL, derogates from the discipline on daily rest, breaks, night work, maximum weekly duration, according to which precisely these provisions can be waived by signing the CCNL.
Now the exceptions established by the CCNL can only be ameliorative and not pejorative of labor law regulations,
Paragraph 5 (referred to by the CCNL) expressly provides that "In compliance with the general principles of protection of the safety and health of workers, the provisions referred to in articles 3, 4, 5, 7, 8, 12 and 13 do not apply to workers whose working time, due to the characteristics of the activity carried out, is not measured or predetermined or can be determined by the workers themselves and, in particular, when it comes to:
a) managers, executive staff of companies or other persons with autonomous decision-making power;
b) of family labour;
c) of workers in the liturgical sector of churches and religious communities;
d) of services rendered in the context of home working and teleworking relationships"
It does not seem to me that the ISF is included in any of the aforementioned letters.
It should also be borne in mind that the law intends to be in favor and not against the worker, given that it is dictated for the protection of the safety and health of workers.
It follows that a more favorable discipline should be applied to these workers.
The regulation expressly refers to a number of workers who, due to the activity they carry out, do not have a predetermined timetable by the company, because the timetable is determined from time to time by the worker. Which means that the company cannot interfere with the activity of this worker, it cannot, that is, expect average daily visits, it cannot expect the daily relationship, nor impose its own rhythms.
Recent jurisprudence (civil, labor sez., April 29, 2004, n.8247) has, however, recently statute that, for the purposes of the exclusion of the application of the legal limits of working hours, the activities of the travelers and pizzists must be considered that carry out their work by traveling in place in place, with services characterized by a large margin of autonomy in the determination and organization of their work, in the absence of the about the temporal methods of the performance. It follows that the task of carrying out additional tasks with respect to the typical activity entails the disappearance of the very presupposition of the derogation, if, by concretely affecting the temporal extension of the work performance and the intervention of control of the same by the employer, it effectively excludes the possibility for the employee to organize his working time autonomously, in the sense indicated.
So, one of the two:
1) either the ISF is autonomous in the management of your working activity, and the company cannot carry out controls on the management of the work, cannot impose average visits, nor fixed hours for the performance of its activity, and then it falls under Article 17 of Legislative Decree 66/03, and is not subject to the regulation on working hours;
2) or it is not, and then the company can subject the activity of the ISF to control and demand precise fulfilments, but in this case the ISF is not covered by article 17 of Legislative Decree 66/03, and is subject to the working hours discipline like all other employees, therefore with recognition of overtime and recovery individually considered, and not, as happens today, with recovery of the 15 minutes of reduced working hours (ROL) scheduled in days or hours of recovery.
Maria Rita Famà lawyer in Milan