New rules on work performance in the company?

by Stefano Trifirò

The hoped-for end of the pandemic, at least in countries where the vaccination rollout and distancing measures have gone beyond all best expectations, is on the horizon. Will the Covid-19 rules that led to the closure of offices with recourse to massive work from home measures have changed the world of work forever?

Taking a step back, we need to focus on the fact that the internet revolution and digitization, in one word – technology, as well as the pandemic – have led us to a new world of work. One wonders then, whether our legislative notion of subordinate work and self-employment is still current in light of the changes that the economy, technology and history of this new world impose on us. Historians argue that humanity has always needed “shocks” in order to grow, to trigger innovation. In Italy, the lockdowns caused by the pandemic was an opportunity for companies to experiment with new forms of work codified in their so-called “agile work” legislative role. But in reality a mix of factors that escape the current legal framework have profoundly innovated the ways of working.

The Prime Ministerial Decree of 4 March 2020 established that remote work can also be applied to subordinate work. The impact has been overwhelming for companies and employees, but also for self-employed workers who have had to adapt to new sudden changes, of which without the shock of the pandemic and lockdowns, would have taken years. Therefore, we ask ourselves: can we continue to strictly adhere to the concept of Romanist extraction upon which our legal system is based, the obligation of result linked to the self-employment relationship and the obligation of means, linked to the relationship of subordinate work?

It seems that the time is ripe for a reform.

The actual work performance in the remote working regime during the pandemic presupposed an organization method based on flexibility and autonomy in the choice of location and hours. Even in the face of greater responsibility of the employee, all factors cannot be framed in the rigidity of the known categories. Thanks to the growth of technologies, it is possible to move to another approach that places the individual at the center of the organization of work, and in which the results of the work performance, participation and cooperation matters more. This is an approach that is better suited to incorporate the innovation of new jobs and related tasks.

Today it is difficult to accept a reasoning based on the fact that to be paid, it is sufficient to make available to the employer only one’s own working energies, without the obligation of results. It would be more appropriate to pay the service on the basis of a job successfully carried out in the interest of the company, understood as a working community where entrepreneurs and workers collaborate for a common purpose: namely the interest of the company.

In Europe, we are thinking of introducing evaluation parameters that take into account the job performed, connected with performance indicators tailored to the individual. Perhaps even for jobs where the work performance must necessarily be performed on a work site, it will be possible to resort to the old framework referred to in Article 2094 of the Civil Code, according to which an employee is a person who provides their work to the employer and is under the direction of the entrepreneur.

As is the case with many other works resulting from the great transformations – climatic, digital and demographic, as well as consequent to the use of (AI) artificial intelligence – robots, for which it will be necessary to formulate new legal institutions that go beyond the old concepts of locatio operis and locatio operarum and place being the center of the work performance measured and valued on the basis of its incidence in the realization of the interest of the company in its sense of a working community as defined above.

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