ITA 
Published on Sole24Ore – Nt Lavoro – on 04/12/2023
The prohibition of intermediation and interposition of labor in the context of "intra-company" services agreements operates whenever the contractor just performs tasks of administrative management of the employment relationships, without taking the business risk or organizing the services.
Court of Cassation, judgment no. 32450 of 22 November 2023.
In the present case an employee – hired by a contracting company as a station and railway yard cleaner under a services agreement – claimed the existence of an employment relationship with the principal.
In particular, the employee claimed that he mainly carried out the tasks under the directives and with the principal’s equipment. Therefore, he claimed that there was an unlawful interposition of labor, in violation of Article 1 Law 1369/1960.
The Court of Appeal, confirming the previous decision of Tribunal, rejected the claim because no direct management of the employment relationship by the principal was proven.
The employee challenged the decision before the Court of cassation, claiming that the principal admitted "a split" of function whereby the contractor provided administrative management of the employees while technical control remained with the principal. The principal justified this "split" on the grounds that safety reasons and the public nature of transport did not allow other parties to give technical directives or control the services execution.
The Court of cassation ruled against the employee. The Court clarifies that in such cases, a distinction must be made between the hypothesis in which the principal directly managed the employment relationships of the contractor’s employees, and the hypothesis in which the principal only exercises the powers of control over the execution of the services (which is a principal’s right). According to the Supreme Court, this case falls within the latest hypothesis.
Lastly, the Supreme Court points out that: with reference to 'intra-company' services agreements, (i.e., where the contractor provides activities strictly inherent to the principal's production cycle), the prohibition of labor intermediation and interposition «operates every time the contractor provides the principal with a work performance, taking care of the administrative management of the relationship (such as remuneration, holidays planning), without organizing the service nor taking the economic risk».