“Brothers, knives”: the bond of subordination “enters” into the family
Constant respect of work hours that coincide with the opening to the public of a commercial activity and the payment of a monthly fee at regular intervals are the two conditions which, when proved, allow the performance rendered by a sister to be classified as a payroll worker activity owned by the brother. This is the rule of law expressed by the Supreme Court in decree n. 4535 of 27 February 2018.
At first instance, the subsidiary was referred to the Court of Turin to claim against her own brother, owner of an individual firm operating in the flower and plant trade, the subordinate nature of the relationship and the payment of the related differences in remuneration. The Court of First Instance, having recognized the existence of the bond, fully accepted the applicant’s claims. The sentence was confirmed on appeal.
The Court of Cassation highlighted the existence of clear elements that made it possible to bring the employment relationship back into the context of payroll work. In fact, during the investigation, the constant presence in the sister’s shop emerged, the observance of a time coinciding with the opening to the public of the commercial activity and the payment, at fixed intervals, of a fee.
These elements suggested that the collaboration given by the sister had entailed a steady contribution to the organization of the commercial activity and not a mere participation in the activity, dictated by reasons of family assistance. The fixed remuneration qualifies as payment for the benefit and not as an economic contribution to cover contingents and, therefore, variable life requirements.
With the judgment in question, the Court seems to confirm the well-known principle that the bond of subordination, where subsistent and proven, prevails over mere collaboration within the family business. It excludes subordination in family work when the parties have given, expressly or tacitly, a different configuration to their relationship or, more generally, when it is intended to attribute legal importance to work performed in the family that can not be classified in typical cases.