New Challenges - The introduction of new technologies, new work processes and new forms of employment and organization produce alterations in business organization and inevitably raise new legal questions.
Think of issues related to health and safety in the workplace, the protection of corporate privacy , how to evaluate and monitor the performance of employees employed remotely, and the right to disconnect. These are just a few of the issues that, whether one wants it or not, the world of work is faced with and that, in the face of the spread now achieved by remote forms of work, need specific regulation.
The effects of the pandemic - The great diffusion of remote work, rather than in agile mode, in Italy can be attributed mainly to the emergency related to the spread of the Covid-19 pandemic; this led to the emergence of what has been called by the doctrine "emergency smart work," to which, unable to continue work in ordinary forms because of the spread of the virus, we gave way, in the forms in which it was possible, that is, basically working from home, with the technological tools that each of us had at our disposal.
It was, therefore, a mode of work that can hardly be defined as agile, i.e., based on organizational flexibility, the voluntariness of the parties signing the individual agreement, and the use of instrumentation that enables remote work (such as: laptops, tablets, and smartphones).
Nor was it true telework, which in any case presupposes some form of organization and will-understood as a free choice of the parties based on an agreement-which, in the meantime, at least provides for the arrangement of a remote workstation from which to perform the service, provided that the tasks to be performed do not by their nature presuppose physical presence in the company.
The relevant legislation - Agile work makes its entry into our legal system with Law No. 81 of May 22, 2017, with the explicit aim of increasing competitiveness and fostering a better balance between personal needs and work time.
Agile work, in essence, consists of an employment relationship in which work is performed partly within company premises and partly outside; in fact, Article 18 of the aforementioned law defines it as a "mode of performance of the employment relationship established by agreement between the parties, including with forms of organization by phases, cycles and objectives and without precise constraints of time or place of work, with the possible use of technological tools for the performance of work. The work is performed, partly inside company premises and partly outside without a fixed location, within the limits only of maximum daily and weekly working time, arising from the law and collective bargaining."
It seems clear that although it was conceived by the legislature as a form of service organization intended to hinge on subordinate labor relations, it is certainly subordinate labor that is particularly free in its performance (free to choose the "where" and "when").
Undoubtedly, this is an organizational mode of work that, although intended exclusively for subordinate employment, has elements typical of self-employed or parasubordinate work, such as the absence of precise time and place of work constraints and the possibility of organizing performance by phases, cycles and objectives, making the subordinate worker responsible for achieving results.
So, one wonders whether a legislative intervention is not desirable that has the courage to identify smart working as an ad hoc contract type, to be removed from the scope of subordinate employment, which precisely enhances categories such as the result of performance and spatial-temporal freedom certainly not typical of subordination, if not alien to it.
Subsequent Articles 19 and 21 entrust the agreement between the worker and employer to regulate the performance of services outside company premises "including with regard to the forms of exercise of the employer's managerial power and the tools used by the worker," "theworker's rest time," the manner of "exercise of the employer's power of control," as well as the identification of "disciplinary conduct related to services performed outside company premises."
In fact, in accordance with Article 19 of Law No. 81/17, the individual agreement on the agile work mode is stipulated in writing for the purposes of administrative regularity and proof and governs the performance of work performed outside the company premises, as far as the above-mentioned aspects are concerned. Such agreement shall also identify the worker's rest time as well as the necessary technical and organizational measures to ensure the worker's disconnection from technological work equipment.
"Simplified" smart working - In light of the previous paragraph, it is now possible to better understand what formally and substantially differentiates agile working under Law No. 81/17 and so-called "simplified" smart working , the usability of which was recently extended until June 30, 2022.
First, the individual agreement, to which--based on the provisions of the normative dictate--most of the provisions intended to regulate the employment relationship are devolved, is eliminated.
In addition, the "simplified" procedure prepared by the Ministry of Labor allows the list of workers to be transmitted in a massive mode and, therefore, more quickly.
Also extended, also to June 30, 2022, is the provision in the March 1, 2020, Prime Minister's Decree that allows companies to fulfill their health and safety disclosure obligations in agile work to workers and workers' safety representatives (RLS) electronically, including using documentation made available by INAIL.
Is a new law on smart working on the way? - As mentioned above, despite the end of the state of emergency, based on the provisions of Article 10 of Decree Law No. 24 of March 24, 2022, the simplified rules on smart working will not change, so the private sector will still be able to take advantage of a simplified regime.
Meanwhile, the House Labor Committee reached an agreement on the so-called Unified Text on smart working , which, should it become law, would replace the current legislation (i.e., Law No. 81/2017, Art. 18 et seq.).
According to the bill, the new Article 18 would reserve an important role for collective bargaining, which would regulate a number of "hot" aspects of the agile labor relationship, such as:
(a) the responsibility of the employer and the worker for the safety and proper operation of technological tools;
b) the right to priority to be granted to requests for the execution of the agile work relationship submitted by the following persons: 1) workers in the three years following the conclusion of the period of maternity and paternity leave, provided for in Article 16 of the Consolidated Text of the legislative provisions on the protection and support of maternity and paternity, referred to in Legislative Decree No. 26 March 2001, no. 151; 2) workers with children with disabilities pursuant to Article 3, paragraph 3, of Law No. 104 of February 5, 1992; 3) workers referred to in Article 33, paragraph 3, of Law No. 104 of February 5, 1992; 4) workers who act as family caregivers , as defined by Article 1, paragraph 255, of Law No. 205 of December 27, 2017;
(c) the equalization of the worker who performs his or her work in agile mode with the staff working in presence for the purposes of economic and regulatory treatment, for the purposes of the right to health and safety at work, as well as the development of career opportunities and salary growth, the right to training and lifelong learning, and the periodic certification of relevant skills;
(d) the right to take vacations and leave in the manner prescribed by law and collective agreements;
(e) the right to disconnection from technological instruments, computer platforms and any communication tools and/or applications.
The shared text provides a number of concessions for companies that decide to take advantage of agile work, such as a 1 percent reduction in INAIL insurance premiums; but also the recognition of a tax credit for companies that make investments in the latest IT tools designed to facilitate activities to be carried out in agile mode.
An important new element, moreover, should be - according to the provisional text approved by the Labor Commission - the introduction of a new article, 24-bis, which would stipulate that "the worker, whether in ordinary mode or in agile mode, is always entitled to the subjective right to disconnection to be understood as the right to estrange himself from the digital space and to interrupt his connection from the technological instruments and IT platforms in his possession, without this resulting in negative effects of a disciplinary nature or pay curtailment."
The legislature is trying again, therefore, this time envisioning-unlike the current discipline-also the introduction of time slots in order to make this right effective, as well as sanctions in case of non-compliance. Indeed, in case of violation of the right to disconnection, "the provisions of Article 615-bis of the Criminal Code shall apply, unless the act constitutes a more serious crime."
