After more than four years after the entry into force of the 'Biagi Law' (which was introduced in our system the project contract), it is increasingly growing number of project workers, while decreasing the temporary recruitment perpetuity. The crucial importance of project work in the current labor market was underlined by the Ministry of Labour which, in fact, has already issued four circulars (the last is number 8 of 31 March 2008), providing clarification and operational guidance. Let us take stock of whether substantial employment in the project in light of the guidelines in case law and findings of the Inspectors' work, called to ensure that the project contract is not used as a tool to circumvent the rules on employment. Under Article. 61 of Legislative Decree no. 276/2003 (so-called 'Biagi Law'), collaborations must be coordinated and continuous belonging to one or more specific projects or programs of work (or stages of it). Therefore, they are illegitimate relationships coordinated and continuous collaboration in place outside of this typical pattern bargaining, with the result of the transformation of the employment relationship of subordination to the project indefinitely. But first things first. The project contract can be validly and lawfully stipulated for the performance of an activity design made independently and based on mere coordination with the client (under the project contract is more correct to speak of the buyer rather than employer work). The project contract should aim to achieve a predetermined result. The written form of the employment contract of the project is required only for testing purposes. In other words, it takes decisive value for the detection of the project or program (or under it). In the absence of writing, in fact, will not be easy for the developer to demonstrate that the placement is due under the contract (central) to the project. In this regard, if the contract is totally lacking an indication of the project, the employment relationship is transformed automatically in employment indefinitely, unless the developer to provide evidence of an actual self-employment . If, however, the project exists and is specified in the contract, the worker will have to demonstrate the conditional nature of the employment relationship and that the project, specifically, does not exist. The project or program (or phase of it) must be specified and identified in a specific way. It may be functionally related activities conducted by the business, but in no way coincide with it. This means that the project specified in the contract can not be confined merely to describe the conduct of the activity by the company or may simply involve listing, although the analytical tasks of the worker. While the inclusion of employee a project in the corporate context can not be considered a decisive element in the subordinate nature of the employment relationship, the other is, however, requires that the employee has a freedom of choice on how to carry out their executive job performance. Do not forget, in fact, that the project work have an autonomous and this is the element that distinguishes it from the employment relationship. It must, therefore, lacking any kind of direction and control by the sponsor, the activity of the employee. E 'also does not affect the time taken for the execution of work: what matters is the realization the project. There is talk in this regard, the obligation of result and not lasting. That's why the remuneration of the employee can not be linked exclusively to the time of the service, as happens under the employment relationship. The principal of non-interference in the working of the employee also means that he can not and shall not engage in any disciplinary powers against him. With regard to the specific operating procedures with which they are made of the work done, it must be said that a benefit is predetermined repetitive and very difficult to reconcile with a character design activities. In addition, the employee should not be used for a variety of generic activities outside the project. His performance should in no case lead to a mere provision of energy work in favor of the buyer. As regards, finally, the extension of the contract if the result indicated in the draft is not reached before the contract expires, it is noted that the unjustified extension - as well as the renewal of the contract for a project the same as above - are particularly clear way to test the elements of subordination. Leaving In conclusion, the talk of crisis and insecurity of a business, an incontestable fact emerges: that the employment contract of the project is a real phenomenon and is increasingly widespread. The fact that the project contract is seen as a step 'forced' into the intake so job security is not enough, in my opinion, to justify the lack of knowledge of the substantive law of this type of contract workers by the same project, among other things, are better qualified and prepared than in years past.
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Circular 1 / 2004 of the Ministry of Labour. The Ministry provides guidance on the substantive law of the contract of coordinated and continuous collaboration in the project (co.co.pro.), Highlighting the fundamental premise of the autonomy of performance and features "project, work program or phase of it." Circular 17/2006 of the Ministry of Labour. With reference to the call center industry, the Ministry intervenes to identify ways to properly use this type of contract, describing in an analytical form of the performance of work.
Circular 4 / 2008 of the Ministry of Labour. The Ministry gives supervisors practical operational guidelines for a more effective and uniform inspection measures designed to bring the use of project contract for the purposes identified by the law. The Ministry also provides a list of some specific activities Work that seem difficult to reconcile with the nature of the project contract. Here they are:
working in distribution of bills or delivery of newspapers, magazines and telephone directories;
employees to betting shops;
cleaners, drivers and drivers
;
babysitters and caregivers;
bartenders and waiters, clerks and employees
sale;
custodians and janitors;
beauticians and hairdressers, porters
;
driving school instructors;
meter reading;
maintainers;
masons and construction workers' skills;
pilots and flight attendants;
providers of labor in agriculture;
involved in activities secretarial and terminal operators.
As for the above work activities, the existence of an employment relationship is presumed. It is for the buyer to prove the amenability of the employment relationship in the context of autonomy and, therefore, employment in the project.
Circular 8 / 2008 of the Ministry of Labour. The Ministry provides new information on the process of transformation and stabilization of cooperative relations in other employment (DL 248/2007 conv. Law 31/2008).
elements that identify an employment relationship of a subsidiary nature.
labor courts construed subordination as hierarchical subjection of the worker in power management and control of the employer. " The Court has identified certain indicators that could help to prove the existence of an employment relationship:
- the submission to the disciplinary power of the worker;
- the obligation to carry out the provision in the timetable established by the employer;
- the ideal pre-determination and continuity of supply;
- the frequency, characteristics and extent of the worker's compensation;
- the absence, for the worker, the risk on the final result;
- lack an organization employing the worker's own employer;
- the inclusion of the structural organization productive worker of the employer.
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