Facts
Parties and procedure : The Swiss National Accident Insurance Fund (CNA) lodges a public law appeal against the judgment of the Social Insurance Chamber of the Court of Justice of the Republic and Canton of Geneva dated 29 November 2018 (A/2289/2017 and A/2290/2017). The respondents are the company [A. SA] (taxi call centre) and two taxi drivers, [B.] and [C.] , all represented by the same lawyer.
Cantonal legal framework : Since 1 July 2017, the Geneva Act on Taxis and Chauffeur-Driven Vehicles (LTVTC) and its regulation have been in force. Previously, the former Geneva Act on Taxis and Limousines (aLTaxis/GE) of 21 January 2005 and its regulation (aRTaxis/GE) applied. Art. 9 para. 1 aLTaxis/GE provided for several types of authorisation, including that of a taxi dispatch centre.
Relevant facts : [A. SA] , registered in the Commercial Register since 1959, operates a taxi call centre for the Geneva area and holds an authorisation as a dispatch centre. The Trade Service authorised [C.] (29 June 2016) and [B.] (19 October 2016) to operate a public service taxi as independent operators. The two drivers entered into a subscription contract (IAC) with the centre providing for: the receipt and distribution of ride orders by a call centre; the provision of computer and radio equipment remaining the property of the centre; a monthly subscription fee of CHF 702.60. The IAC imposes, among other things, various obligations (distinctive signs, receipts, on-board equipment switched on during service, non-compete clause, prohibition on working a taxi not registered with the centre), an internal regulation, a quality charter comprising sixteen commitments, and a scale of suspensions ranging from one day to one week. The IAC has an annual term, is tacitly renewable, and may be terminated with thirty days' notice to the end of a quarter.
Administrative procedure : By decisions of 28 September and 23 November 2016, the CNA classified the activity of the two drivers as dependent. Upon objection, it maintained this classification by decisions of 10 April 2017; for [C.] , who had terminated the IAC effective 31 October 2016, the CNA confirmed the dependent status for the period from 1 August to 31 October 2016.
Cantonal decision : After the personal appearance of the parties and the hearing of witnesses, the cantonal court, by judgment of 29 November 2018, upheld the appeals of [A. SA] and the drivers, annulled the decisions on objection and remitted the matter to the CNA. It held that the drivers were independent, considering that the elements in favour of independence prevailed.
Submissions and disputed question : The CNA seeks annulment of the judgment insofar as it recognises the drivers as independent, and confirmation of its decisions on objection. The respondents request dismissal of the appeal. The Federal Office of Public Health did not submit observations. The disputed question concerns the classification, under Art. 66 para. 1 let. g AIA, of the taxi driver activity carried out by the centre's subscribers: dependent or independent activity.
Considerations
Admissibility : Although the operative part remits the matter to the CNA, the judgment is not an interlocutory decision within the meaning of Art. 93 FSCA, since the cantonal court ruled definitively on the disputed points and the administration no longer has any margin of discretion. The appeal, directed against a final judgment (Art. 90 FSCA) rendered in public law matters by a cantonal authority of last instance (Art. 86 para. 1 let. d FSCA), is admissible.
Legal framework and scope of review : Workers within the meaning of Art. 1a para. 1 let. a AIA are compulsorily insured, namely persons engaged in a dependent gainful activity within the meaning of Art. 5 para. 2 OASIA and Art. 1 AIO. An employee is one who depends on an employer as regards the organisation of work and from the standpoint of the business economy, and who does not bear the entrepreneurial risk. The determinative elements are the employer's power to give instructions, subordination, the obligation to perform the task personally, regular collaboration, and the possibility of organising one's schedule, which is not sufficient to exclude employment status. The Federal Supreme Court is bound by the facts established by the lower authority, save for arbitrariness (Art. 105 para. 2 FSCA), the question not concerning the award of benefits.
Assessment of the economic dependence complaints : The appellant argued economic dependence, regular collaboration, and the fact that 50% of the drivers' income derives from the centre. The Federal Supreme Court holds that the centre's service is a paid service (fixed subscription), that the centre's economic model rests exclusively on subscriptions and not on the number of rides, that the drivers collect and keep the fares, and that the centre does not know the amount of these fares. The relationships fall within an economic relationship benefiting both parties. The complaint is dismissed.
Assessment of organisational dependence : The appellant maintained that the numerous contractual obligations and the scale of sanctions reflected a power of instruction and discipline comparable to that of an employer. The Federal Supreme Court notes, however, that the drivers are subject to no instruction as to place or time of work, may choose whether or not to work, set their…