Tourism, visits to vineyards, associated activities and classifying subordinate employment relationships by Enrico Gragnoli

Tourism, visits to vineyards, associated activities and classifying subordinate employment relationships Enrico Gragnoli University of Parma 1. Wine tourism and associated activities. 2. Spontaneous participation of tourists in production activities and the nature of this working relationship. 3. Spontaneous participation of tourists in production activities and protecting their health and safety. 4. Guides in wine tourism. 5. Autonomous work and subordinate employment in wine tourism. 1. Wine tourism and associated activities. As with any other business, firms in the tourist industry must organise the work of staff members in keeping with production factors, adopting the associated regulations that govern their protection and vary depending on whether they are autonomous (self - employed) or employees with a subordinate employment contract. The extensive body of regulations and laws has not created separate categories for organisations offering tourism - related activities. As a result, there are no specific criteria that apply to them. The contract of enrolment and employment in the aeronautical and maritime field is a case apart, as the Italian Code of Navigation formerly introduced extensive regulations which remain in force to this day, although there has in fact been a tendency to bring them into line with common law, particularly where aeronautical work is concerned. There is not such a thing as law for tourism - related work, nor is it likely that such a situation will change, even in the long term. Regardless of the sector concerned, employers must respect labour law as a whole, and observe all the associated obligations. The regulations apply regardless of the type of company concerned and its function. Any business, and any work provider, must take labour law into account, even if it has not or indeed cannot be designed to cover every area of the market. Similar evaluations apply to autonomous or freelance work, in all its guises (occasional work, contracts stipulated with freelancers enrolled in professional registers and

1st World Congress on Wine Tourism and the Law agreements with freelancers not enrolled in professional registers). If anything, it is necessary to look into the forms which apply most to common organisational models, and ask ourselves how certain general principles are applied in relation to the most common problems faced by tourism companies, particularly in the wine - making industry. The same reasoning could, at least on an abstract basis, be applied to any economic sector. As with any other entity, tourist employers hire, dismiss, change the roles, transfer and exercise disciplinary and managerial power over their employees, as well as controlling them and ensuring they observe given working hours, amongst other things. In any case, employers in the tourism field must respect the entire set of provisions which, as a result, they must be familiar with. From the scientific standpoint, there is no employment law specifically for tourism businesses, nor is it likely that one will be developed in the long term. Given these circumstances, wine - related initiatives pose at least two sizeable issues; on the one hand, if a tourist takes part in production activities, one might ask oneself if playing a part in grape harvesting or wine - making constitutes a form of subordinate employment, or in any way poses legitimacy issues. On the other hand, given the frequency with which they play a part, it poses the question of how to classify the services provided by the guides or experts asked to illustrate the characteristics of the products or wineries and the methods they use, in particular to clarify whether the guides’ contributions should be provided on a subordinate employment basis. Both questions are relevant in terms of their application, and require a degree of reconstruction. As one might well expect, my answer is based on the tenets of Italian legislation, but, as it concerns theoretical issues, I expect the topic to apply across the board, and to be of interest to stakeholders in other countries as well. 2. Spontaneous participation of tourists in production activities and the nature of this working relationship. Work on an employed basis implies a professional activity performed on a salaried basis, and not just in Italy. For example, “for services provided in terms of a family - based collaboration and assistance offered to relatives or suchlike, including those with whom the person concerned does not cohabit, the assumption of gratuity still applies, based on the premise that the above services are usually provided affectionis

Enrico Gragnoli vel benevolentiae causa”1 (namely work rendered out of a spirit of solidarity or gratitude). Indeed, “in the case of discontinuous and occasional services provided by a person who cohabits with a group of family members, with whom he or she shares a life and interests, the assumption of gratuity applies. If the services are also provided on a fragmented, sporadic basis, without obligations in terms of presence and working hours, subordinate employment grounds shall not apply”2. The problem lies in the possibility of identifying professional relationships after the fact, when they originally came about based on the spontaneous voluntary participation in the activities of others. An example of this is where a traveller who wishes to take part in the grape harvest or wine - making process engages in the activities for recreational purposes; if a tourist fulfils activities without asking for and accordingly obtaining any remuneration, his or her collaboration is not professional, because it would be incompatible with his or her behaviour. Failure to request payment is always deemed to be a clear indicator of the desire to perform a task on a non - professional basis. In this field no employment contracts are concluded in initiatives resulting from spontaneous decisions and free participation, regardless of whether the work is carried out in the domestic environment, or for a business or organisations of an economic nature, as is often the case, such as for a farm business and, in particular, a winery. The behaviour is the primary indicator of the nature of the activity3, as decisions taken with awareness bind the person taking them in an objective and definitive manner4. Those performing a task without asking for any remuneration do so not out of distraction, or with a view to demanding payment at a later time, nor indeed because they are not informed of their rights, but because they wish to make a contribution for moral reasons, due to sentimental ties or for reasons linked to leisure, recreation or active forms of rest; these goals are justifiable in contexts that differ from, or are actually opposite to, those of a professional kind. Any objective ties of a recreational or leisure - based nature prevent a working relationship from being identified after the fact, because the relationships are not 1 See Cass. 17 August 2000, n. 10923, in Giur. it. rep., 2000. 2 See Cass. 19 June 2000, n. 8330, in Giur. it. rep., 2000. 3 See Mosco, Principi sulla interpretazione dei negozi giuridici, Naples, 1952, 108 ff.; Roppo, Il contratto, Milan, 2001, 473 ff.; Gentili - Sicchiero, Contratto collettivo e rilevanza della contrattazione successiva, in Giur. it., 2001, 2024 ff.. 4 See Sicchiero, La clausola contrattuale, Padova, 2003, 93 ff.. Cf. Costanzo, Sulla valutabilità del comportamento dovuto in sede di interpretazione del contratto: incidenza sulla autonomia delle parti. La non sussidiarietà dell’art. 1362 cpv. cod. civ., in Giust. civ., 1994, I, 1928 ff..

1st World Congress on Wine Tourism and the Law professional, and they have to be classified amongst those of a spontaneous nature. Working activities cannot be ascribed to being performed for opposite reasons after the fact. Subordinate employment law cannot govern behaviours motivated by the desire for enjoyment, as any type of authority is absent at the outset, and subordinate employment is based on the monetary nature of the interests pursued. Where different moral criteria subsist, employment law cannot govern behaviours which do not fall within its remit. The interpretation of manifestations of will and how actions are classified call for the assessment of free conduct5. Accordingly, the “contractual programme” must involve verification of all the elements that play a part in it, based on legal parameters. A “programme” inferred from literal interpretation alone - and which is linked solely to psychological will - is not of particular interest, meaning that the agreement must be interpreted based on behavioural elements6. An activity cannot be carried out free of charge under a subordinate employment basis. If the cooperation is founded on an enjoyment - based reason and no payment is made over, there is no subordination, as there is no actual juxtaposition of the interests concerned. The pivotal issue is the absence of any payment. As a result, only the tourism contract regulates experiential initiatives, such as grape harvesting and wine making, without subordinate employment agreement. The tourists are not employees. 3. Spontaneous participation of tourists in production activities and how to protect their health and safety. The above considerations do not exclude the importance of certain areas of regulations governing subordinate employment involving tourists that engage in cultivation or wine - making for leisure - related purposes, as they are also covered by health and safety rules and, in particular, by legislative decree no. 81 of 2008. In fact, the latter was designed to adopt and implement the complex European Union regulations, so that its principles are directly reflected in those of other member States. In the first paragraph of article 2, under letter a), a worker is a “person who, regardless of the type of contract concerned, performs working activities within the organisation 5 Cf. Irti, Testo e contesto, Padova, 1996, 160 ff.; Schlesinger, Complessità del procedimento di formazione del consenso ed unità del negozio contrattuale, in Riv. trim. dir. proc. civ., 1964, 1365 ff.; Di Paolo, Comportamento delle parti, in Aa. Vv., L’interpretazione del contratto, Milan, 1983, 207 ff.. 6 See Sicchiero, La clausola contrattuale, cit., 95 ff..

Enrico Gragnoli of a public or private employer, with or without payment, even solely for the purposes of learning a trade, art or profession, with the exception of those that undertake domestic services and family members”, with the recent clarification that they are on a par with “the recipients of training and vocational initiatives (…) which are promoted for undertaking school work experience sessions, or to assist in professional orientation by means of direct knowledge of the working world”. The original wording of the first paragraph of article 2, letter a), of legislative decree no. 81 of 2008 was drafted in 2008. It does not make express reference to productive experiences for tourism or leisure - related purposes, but implies that its interpretation should be as extensive as possible where uniform risk situations apply. Indeed the participation of inexperienced persons in farming or agricultural and industrial production processes heightens the risk, and renders recourse to any and all forms of protection even more urgent, beginning with accurate preventive information and active accompainment in order to safeguard those from different professional backgrounds. As a result, rules for safeguarding health and safety do not just apply to these persons (who are not employees), but indeed they must be implemented even more rigorously, as ongoing care and respect for prevention measures is vital for those who are inexperienced and often altogether unfamiliar with manual tasks in general, much less still familiar with the farming and agricultural and industrial field. Therefore, it is not only necessary to use equipment in line with general provisions to promote safety, but it is also essential to introduce measures that help prevent hazards caused by general lack of expertise which the business concerned must overcome with corresponding resources. First and foremost, this requires thorough analysis beforehand, in order to identify any risks which are doubtless greater for an eager but - perhaps - imprudent tourist, than for a worker who is aware of the circumstances and used to making careful use of equipment. In the case of tasks in roles that pose risks involving persons from other professional backgrounds with little experience and practical knowledge of the agricultural or industrial sector as a whole, the preventive measures must be enhanced to an extreme level in order to protect those at greatest need of the business’s expertise, particularly with regard to specific preventive information to bridge inevitable and often highly significant gaps in know - how. Accordingly, where wine tourism is concerned, tourists can be involved in grape cultivation or wine - making tasks, but with all the precautions that might be called for

1st World Congress on Wine Tourism and the Law when inserting a person from a different professional background in a production context. 4. Guides in wine tourism. In accordance with article 11 of legge quadro no. 217 of 1983, which has now been repealed, a tourist guide was an individual who, by profession, accompanied people or groups on tours of works of art, museums and art galleries, and illustrated historical, artistic, monumental, landscape and natural attractions. As a result, wine - related initiatives are not covered, if they do not have some connection with artistic or landscape - related aims, whilst the explanation of the characteristics of foods and drinks does not fall under the remit of the guide. Since 1983, the profession has only been open to those whose actual qualification has been ascertained by the relevant examinations. Specific study qualifications or attendance of courses are required. This activity became specialised in nature and called for in - depth knowledge in cultural terms - though not about wine - related aspects - beyond the framework of activities performed by guides. Artistic guides were the only ones to actually benefit from professional protection. There has been no shortage of judgements passed down by the Court of Justice7 according to which Italian regulations pose undue restriction of access to the relevant economic function. A compromise was offered by article 10, paragraph four, of law decree no. 4 of 2007; on the one hand, a regional qualification was confirmed as a necessary condition to work as a guide, whilst, on the other hand, “those that qualify (…) within the framework of the legal system (…) of the European Union country of origin” could work “on the basis of the freedom to provide services, without the need for any authorisation or qualification to do so”8. As a result, a guide from another European Union State could work in Italy without actually having any knowledge of our heritage, whilst Italian citizens were required to obtain local qualification, issued by the regional authorities. This created a “reverse discrimination”9, which altered the market’s dynamics in an unjustifiable way. In any 7 Cf. Court of Justice 26 February 1991, C – n. 180 / 1989, Commission vs. Italy; Court of Justice 26 February 1991, C - n. 198 / 1989, Commission vs. Greece; Court of Justice 26 February 1991, C – n. 154 / 1989, Commission vs. France. 8 See article 10 of law decree n. 4 of 2007. 9 Cf. Righi, Le professioni turistiche, in Aa. Vv., Manuale di diritto del turismo, edited by V. Franceschelli – Morandi, 4th edition, Turin, 2017, 217 ff..

Enrico Gragnoli case, the regulation did not concern wine - related profiles, which fell beyond the boundaries of the regulation, and for which anyone is entitled to offer information and accompany tourists. Law no. 97 of 2013 regulated the work of tourist guides, so that, in article 3, the qualification “is valid throughout all of Italy”10. This principle was, however, mitigated by the ministerial decree issued on 7 April 2015, with which the Ministry for Cultural Heritage and Activities and Tourism identified approximately three thousand sites for which a further special qualification was required in order to exercise the activity, as described in subsequent ministerial decree of 11 December 2015. Whilst the qualification was national, the decree limited the scope of the qualification to a specific area, and actually hindered the work to non - local guides. On the contrary, there are no restrictions in the wine - related field, as there is no reservation to do so. Both the ministerial decree issued on 7 April 2015 and the decree issued on 11 December 2015 were challenged before the Administrative court, which ruled they were illegitimate as they extended the sphere of operation of the specialistic qualification excessively, to the point that the national qualification was rendered useless if not complemented by the former. In actual fact, the list of approximately three thousand sites contained in ministerial decree dated 11 December 2015 limited the extent of the national qualification to the point it almost annulled it. As a result, a system “which should have been (…) simplified” was transformed into “one which necessarily called for a double qualification”11. Moreover, due to the fact that wine - related areas were originally excluded from the provisions regarding guides, any debate about their functions does not apply to this analysis. Anyone is free to address issues related to the gastronomic field and wine tourism, and does not benefit from any limitations. There are no other parties at this moment in time to whom such exclusive competence is reserved. Tour managers may intervene, as under Italian regulations they are not subjected to selective protection, in spite of the fact that they have to pass an exam to assess their expertise12. At present, the field of food and wine allows freedom of illustrative action to anyone 10 Cf. Cons. Stato, sez. VI, 13 April 2017, n. 3859, Giur. it. rep., 2017. 11 Cf. Cons. Stato, sez. VI, 13 April 2017, n. 3859, cit.. 12 Cf. Righi, Professioni turistiche, in Dig., disc. pubbl., 12th volume, 12 ff., and, by the same Author, La dimensione comunitaria del turismo e il suo impatto sull’ordinamento italiano, in Riv. it. dir. pubbl. comm., 1992, 833 ff., and, by the same Author, Professioni turistiche e principi comunitari: si riaccende la “guerra delle guide”, in Dir. tur., 2005, 281 ff.; Silingardi, Le professioni turistiche: profili organizzatori nell’ordinamento interno e in quello comunitario, in Riv. giur. circ. trasp., 1993, 677 ff..

1st World Congress on Wine Tourism and the Law presenting him or herself as an expert, without affording the protection of specific professionals. In addition, a law was proposed in Italy on 24 January 2023 for new regulations governing wine tourism. One new aspect appears in article 2, paragraph three, according to which “the person responsible for wine tourism activities must hold the title of sommelier”. This provision appears excessive and contrary to the desire to promote development of these initiatives; if this requirement were indeed confirmed, we might witness a fall in their number. If wine tourism is actually to stimulate an expansion in agricultural activities and promote them, the economic functions must be organised according to a simplified process. Broadly speaking, the title of sommelier would be required for the person in charge of the initiatives. This is not necessary for enhancing and promoting them. If tourist guides are dedicated to initiatives that concern heritage of aesthetic and historical importance, there is nothing to prevent regulations being introduced in the future to limit professional participation in wine tourism initiatives; for the time being, however, this principle does not exist. 5. Autonomous work and subordinate employment in wine tourism. Workers who are involved in wine tourism initiatives may be employees or freelancers, depending on the organisational agreements reached with the companies they work with. Whilst the subordinate employment contract is typical, and is governed by extensive heteronomous regulation in no way comparable with that of any other type of autonomous agreement due to its complexity, wide - ranging nature and scope, not least in terms of social security, welfare and taxation, the same cannot be said of freelance work. The latter is in fact a concept which does not identify any one kind of agreement, but is instead an expression that covers different institutions with different purposes. As is inevitable, this arises if the freelance agreement includes the models of the appointment, the agency and the mediation, along with the many others that might apply, so that the contract for provision of the service, whether intellectual or manual, is one of the situations concerned. Problematic issues regarding qualification arise in all the cases, because within the variety of cases concerned, these agreements must differ from subordinate employment - the plausible alternative for achieving comparable organisational outcomes - albeit under the application of the employer's powers. In the case of wine tourism activities, in our own legal system, autonomous

Enrico Gragnoli work almost inevitably involves intellectual service contracts which consist of providing a service without subordination and without an entrepreneurial organisation. As can be seen, “an essential and decisive element of subordinate employment, and one in which it differs from autonomous freelance work, is the link of subordination, whereby the worker is subject to managerial, organisational and disciplinary power, which manifests itself in the provision of specific orders and close supervision. The other aspects of the activity, such as its continuity, its ability to meet the goals of the business, the means of payment, the absence of risk and the observance of working hours, are not decisive as, up to a certain point, they are compatible with both subordinate employment and freelance, autonomous working relationships”13. The analysis gets to the core of article 2094 of the Civil Code and highlights the nature of subordinate employment as an expression of authority which is renewed, within the limits of compliance with laws for protecting workers, adapts it to the company’s objective and, in adapting it, ensures it fulfils the company’s interests. When viewed in terms of authority, subordination involves the exercise of power, and provides far greater scope for the employer’s initiative as it is prolonged in time and allows the employment relationship to be adapted to new circumstances. It is no coincidence that the same topic arises in relation to partners, because, “in partnerships, a subordinate relationship can be adopted as long as two conditions apply, namely that the working relationship provided does not overlap with an appointment awarded by the contract and that the partner provides his or her working activities under the hierarchical control of another who is equipped with higher powers”14. Identical conclusions are drawn when work requiring particular qualification and so - called reduced subordination are in question, as, “for the purposes of the managerial work, in which the worker enjoys considerable autonomy and the managerial power does not manifest itself in continuous orders and checks of a pervasive nature, but instead in the provision of broad programmatic indications suited to the discretional nature of the tasks concerned, the court must assess, as a defining requisite of the working service provided, whether its functional coordination with the goals of the organisation is such that it meets the main characteristics of technical and juridical subordination”15 and namely the exercise of powers. 13 See App. Bologna 15 May 2008, in Giur. it. rep., 2008. 14 See Cass. 21 giugno 2010, n. 14906, in Giur. it. rep., 2010. 15 See Cass. 15 maggio 2012, n. 7517, in Giur. it. rep., 2012.

1st World Congress on Wine Tourism and the Law At the current time, only by examining the case in hand is it possible to establish whether the individual concerned is working in autonomous (freelance) form or under subordinate employment. This applies to wine tourism just as much as any other form of entrepreneurial initiative. The issue raised by article 2094 of the Civil Code is the frequently - encountered difficulty of clearly demonstrating the exercise of powers that characterise subordination in legal proceedings, as the managerial kind is implemented in a fractional, periodic manner and is divided into a number of instructions. The disciplinary and control powers are merely potential and often the dimension of authority concerned does not translate into direct forms of implementation, nor indeed conduct that can be perceived and easily proven in legal proceedings. Indeed, it is stated that, “in relation to work of an intellectual nature which does not require any organisation or adoption of risk by the worker, the key criterion for ascertaining the nature - autonomous or subordinate - of the relationship is the existence of managerial power which, whilst within the boundaries posed by the professional nature of the working relationship, allows it to exert itself in full within the organisation”16. As a result, only by examining the case in hand is it possible to establish whether the working relationships in the wine tourism activities concerned are subordinate or autonomous. 16 See Cass. 10 febbraio 2016, n. 2653, in Giur. it. rep., 2016.