By Federico Manfredi and Rebecca Pala.
The “Reopening Decree”, among the many innovations aimed at phasing out the emergency period, unexpectedly arranged for the extension of the special rules on remote working for the private sector until 30 June 2022. In fact, until a few days ago, it seemed that the end of the state of emergency – set for March 31, 2022 – would bring with it a revival of the ordinary discipline of remote work referred to in Legislative Decree 22 May 2017, n. 81. As known, it would have involved the necessary stipulation of an individual agreement between the worker and employer relating to the execution of the service in an agile working mode. This agreement should also have coordinated with the protocol on agile work, stipulated by the social partners on 7 December 2021 also with regard to corporate security and protection of privacy in accordance with the provisions of the GDPR and the current Privacy Code.
The extension allows the employer to unilaterally arrange remote working for the next few months, until 30 June 2022. The extension also extends to the obligation to inform the Ministry of the names of the workers involved in agile work, so that a mass communication continues to be sufficient, potentially also with reference to any individual agreements prearranged. Likewise, without waiting for the date of 1 July 2022, the stipulation of the individual remote working agreements remains a topic of primary interest for companies, which with this extension have a longer time to deliberate for the elaboration and implementation of agreements and policies that are better designed and synergistic with respect to the economic activity carried out. In fact, if the companies, in accordance with the previous indications, have arranged or are preparing agreements with individual employees, these remain valid and intended to regulate the execution of the employment relationship starting from the conventionally agreed date, regardless of the extensions of the law. With the stipulation of this agreement, the employer and the employee establish – and therefore better specify for both parties – the methods of execution of the work performance. Therefore, the typical modalities of agile work that the parties will be able to agree on are many and unprecedented.
As for the workplace, the worker is generally left free to choose the location to work from, however it must comply with the requirements of suitability, safety and habitability, better specified in the agreement, also with regard to minimum standards of connection and noise pollution. Another characteristic aspect is the flexibility of the working hours. The agreement generally states the maximum duration of the day and the working week, possibly also fixed by collective bargaining agreements. To this end, the parties agree on additional temporal elements, for example: a period within which the service must be provided, the contractually agreed working hours, duration of the break if the working day is longer than six hours, and the regulation of overtime work.
The individual agreement may contain the definition of the periods of availability and the consequent right to disconnect, by marking the boundary between the diligence of the worker and the space in which the latter is not available to the employer. Indeed, although this protection is not expressly provided for by Legislative Decree 81/2017, it can still be derived from the principle of the reasonable duration of the work performance from art. 2087 of the Civil Code, as well as the decisions of the European Court of Justice on the matter.
Another aspect of great interest is the employer’s right to resort to remote controls, always within the limits set out in art. 4 of the Workers’ Statute, also intervening on the work tools provided to the worker in agile work mode (computer, smartphone, etc.). Controls of which there is no need for a trade union agreement, which remains for other instruments on which control over the employee may depend.
Finally, the remote working agreement can have a term or be indefinite. In the latter case, in compliance with the rules of common law pursuant to art. 1373 of the Civil Code, dismissal is possible with or without notice, also depending on any agreements in place. In conclusion, collective and individual negotiation autonomy is entrusted with the task of defining tailor-made agreements, in order to allow effective use of the remote working mode, now an increasingly important coordination tool between work and private life. However, the significant organisational challenges of agile working also place the contribution of the labour lawyer at the centre, as a fundamental support to the decisions of management in the planning and drafting of individual agreements that are consistent and synergistic with the HR strategies of the company.