by Anna Minutolo
Remote working (or agile working) is a mode of execution characterised by the absence of hourly or spatial constraints, through an organisation with stages, cycles and objectives established by an agreement between the worker and employer. This mode of work is currently regulated by Law No. 81 of 22 May 2017 (Art. 18 -24) which provides, in summary, that:
– the work is performed partly inside the company premises and partly outside, without a fixed location, within the limits of maximum daily and weekly working hours (Art. 18, para. 1);
– the employer is responsible for the safety and proper functioning of the technological tools it provides to the worker (Art. 18(2));
– the agreement between the employer and the worker is drawn up in writing for the purposes of administrative regularity and proof and regulates the performance of the work carried out outside the company premises. It also concerns the forms of exercise of the employer’s managerial power and the tools used by the worker, identifies the worker’s rest periods and the technical and organisational measures necessary to ensure the worker’s disconnection from the technological work equipment (Art. 19).
With the health emergency from Covid-19, the use of remote working was extensive and it was necessary to introduce the provisional rule by virtue of which, until 31 August 2022 (Art. 10, co. 2 bis, DL n. 24/2022, conv. in L n. 52/2022), agile working can be used even in the absence of individual agreements (Art. 90, co. 4 DL n. 34/2020, conv. in L n. 77/2020).
On 7 December 2021, the Ministry of Labour and the Social Partners signed the “National Protocol on Agile Working”, i.e. an agreement that defines the framework for remote working in the private sector and dictates the guidelines for national, territorial and company collective bargaining in compliance with the legislation (L. no. 81/2017) and collective agreements in force, which provides:
– the voluntary choice of remote working;
– commitment periods and not working hours;
– the guarantee of disconnection periods;
– the employee’s free choice of where to work provided that security and confidentiality are respected;
– the possibility of using employee-owned technological tools.
Currently, the Labour Commission of the Chamber of Deputies is working on a consolidated text with amendments to Law No. 81/2017 that would entail, if approved without changes, the following novelties:
– rewriting of Article 18 of L. No. 81/2017 that would delegate to the collective agreements the regulation of the most important aspects of work performance, namely: the responsibility of the employer in relation to the safety and proper functioning of technological tools; the right to the priority of remote working requests submitted by specifically identified individuals (parents, caregivers); the equalisation of the “agile worker” with staff working in presence for the purposes of economic and regulatory treatment, the right to health and safety at work, development of career opportunities and salary growth, training and lifelong learning and the periodic certification of relevant skills; the right to take holidays and leave in the manner provided by law and by collective agreements; and the right to disconnect from technological instruments, IT platforms and any communication tool and/or application;
– greater specificity of the individual agreement which should regulate the duration of the agreement; the alternation between periods of agile work inside and outside company premises; amount of hours of at least 30% to be dedicated to each activity in agile mode; time slots for on-call time; information on safety at work, technical and organisational measures necessary to ensure the worker’s disconnection from the technological instruments of work in order to guarantee the worker’s effective compliance with the daily and weekly rest periods, as well as rests during work with particular regard to workers who continuously use monitors and terminals; training activities that may be necessary for the performance of work in agile mode;
– the express provision of the right to disconnect is defined as the “right to withdraw from the digital space and to interrupt the connection to the technological instruments and IT platforms in one’s possession, without this entailing negative effects of a disciplinary nature or a reduction in remuneration” and is guaranteed by the provision that the hours of disconnection must be established by collective bargaining; and by the fact that the right to disconnect is always enforceable against the employer during the rest period; and by the provision that the violation of the right to disconnect is criminally relevant and as such punished;
– derogation from the rules on rest, breaks, night work and maximum daily working time;
– the need to assess the risks connected and/or related to display screen equipment and network connectivity;
– continuous and ongoing training;
– repeal of the discipline inherent in the power to control and discipline the remote worker (Article 21 of Law No. 81/2017);
– tax credit for the sums spent by companies to purchase IT tools to facilitate agile mode activities (Article 8)
– an incentive – consisting of a one per cent reduction on the employer’s insurance premiums due to INAIL – for companies that activate agile working (Article 9);
– establishment of a fund, with an endowment of 80 million euros per year, for the promotion of agile work (Article 10);
– creation of a collection at the Ministry of Labour and Social Policies of good practices in the activation of remote working (Art. 11).
Recently, the National Bilateral Observatory on Agile Work composed of representatives of employers and workers and chaired by the Ministry of Labour, has been set up to monitor at a national level: the evolution of agile work with reference to results; the development of collective bargaining on the subject and the trend of the guidelines contained in the Protocol of 7 December 2021 and possible developments with reference to any new regulations as well as the growing technological and digital evolution.