Studio Legale Pistone

SUBORDINAZIONE E AGENZIA

Quando il rapporto di agenzia simula un rapporto di lavoro subordinato

La giurisprudenza in più occasioni ha fatto applicazione dei principi generali in materia di lavoro subordinato per distinguerlo dal rapporto di agenzia, avente natura parasubordinata e che prevede espressamente la sottoposizione dell’agente a direttive ed istruzioni.

In particolare, ha evidenziato che la presenza in un rapporto di indici quali la collaborazione, l’assenza nel lavoratore del rischio economico, la continuità della prestazione, la predeterminazione della retribuzione, l’obbligo di osservanza di un determinato orario, l’alienità dei mezzi di produzione, possono avere un rilievo distintivo soltanto complementare e secondario e divengono non determinanti se non accompagnati dal requisito della subordinazione, intesa quale vincolo di natura personale che assoggetta il prestatore d’opera al potere direttivo, organizzativo e disciplinare del datore di lavoro con conseguente limitazione della sua libertà.

Per ritenere, dunque, sussistente la subordinazione è necessario accertare che la prestazione d’opera sia regolata nel suo svolgimento e che, quindi, il potere direttivo del datore di lavoro inerisca all’intrinseco svolgimento della prestazione lavorativa poiché solo in questi casi il vincolo si traduce in limitazione significativa della libertà del prestatore d’opera, che generalmente si ritiene valga ad evidenziare e caratterizzare la natura subordinata del rapporto di lavoro, che non è presunta dalla legge, ma deve essere dimostrata da chi la deduce con il riscontro in concreto del sopra specificato requisito della subordinazione.

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