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22.102021

Typical subordination in a journalistic employment relationship: the Court of Cassation opinion (Andrea Di Nino, Sintesi – Ordine dei Consulenti del Lavoro, September 2021)

The Court of Cassation, in ruling no. 21793 of 29 July 2021, stated that self-employed but continuous journalistic activity and under certain conditions implies the existence of an employment relationship.

The facts of the case involved a self-employed woman taking legal action to obtain verification of the existence of an open-ended employment relationship with a publishing group. She requested the employer be ordered to pay the difference in salary due under the NCLA following the conversion.

Initially, the Trieste Court of Appeal partially accepted the appeal filed by the employee, overturned the relevant court’s ruling by ascertaining the existence of an open-ended employment relationship in the period from January 2010 to March 2013. However, the request for payment of salary differences was declared null and void.

The court established that during the period in question the employee had followed the local news continuously, and was responsible for an information sector, and had ensured coverage during her employment.

The publishing company, opposed the second instance ruling, and appealed to the Court of Cassation claiming the non-existence of a permanent relationship between the parties, since it had not been demonstrated that she had been asked to be available between her journalistic services during employment.

The employer considered that the relationship between the parties did not show the typical general and specific elements of journalistic subordination. The employee worked discontinuously and with a limited commitment. She never had to guarantee her presence between work assignments. She did not have to ensure on call availability, and she could not ask for holidays. In the employer’s view, she was not subject to any management, organisational or disciplinary powers.

After examining the appeal lodged by the publisher, Court of Cassation noted that “as part of journalistic work of a permanent self-employed person, continuity is important, which is normally limited to offering services related to a specific area of expertise.” Based on case law, the Supreme Court stated that “work continuity” means the performance of non-occasional work, “aimed at ensuring the training and information needs of a specific sector”, which is accompanied by “responsibility for a service, which implies the systematic writing of articles on specific topics or columns” and the “subordination, as a result of which the employee’s commitment to place their work available to the employer continues even in the intervals between one service and another.”

The Court of Cassation stated that the continuity of service is when the permanent employee, ensures “a non-occasional service, aimed at meeting the training or information needs related to a specific area of expertise” under an assignment, although not providing their work daily.

In addition, there is subordination in cases where “the permanent self-employed person’s commitment to make their work available does not cease between one service and another in relation to timetable obligations, linked to service and production needs, and circumstances deriving from the assignment.”

Finally, responsibility for a service exists where the permanent self-employed person is entrusted with the task of writing “articles on subjects or compiling columns normally and continuously.”

In the light of these considerations, the Court of Cassation said that in the second instance it was established that the employee’s services were provided “continuously and not occasionally.” The number of articles written may have varied, but the service was daily, except on Sundays.

It was found that the employee was responsible for covering a sector and suggested stories for that round.

It was found that the employee was part of the company organisation and subject to the directives of the heads of service whose cuts and emphasis on news items she had to follow. Ultimately, it was found that the way the service was carried out revealed the availability of the employee during the intervals she was not working.

The Court of Cassation rejected the employer’s appeal and ordered it to pay costs.