SMART WORKING IN THE DAYS OF COVID 19
The regulatory interventions adopted by the Italian Government on agile (or smart working) work during Covid19 pandemic crisis.
From the exemption of the agreement with the worker to the recognition of smart working as a right for holders of benefits under Law no. 104/1992.
There are two measures, on the subject of smart working, adopted by the Italian government in recent weeks, on which it is necessary to focus in a short time: the first is a decree issued directly by the Presidency of the Council of Ministers on 8 March 2020; the second is Decree Law no. 18 of 17 March 2020.
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Smart Working ex - L. n. 81/2017
The Smart Working has been regulated by art. 18 et seq. of Law no. 81/2017, and is characterized by allowing the employee, on the basis of an individual agreement signed with his employer, to perform his work at least in part outside the company offices, in the absence of strict time and/or place of work constraints, through the use of computer tools, not necessarily provided by the company.
The 2017 regulations provide - obligatorily - for the existence of an agreement between the parties, within which certain fundamental aspects of a substantial modification of the employment contract must be regulated.
First of all, it is therefore necessary to identify the period of time during which Smart Working will be allowed to be carried out, either for a fixed or unlimited period.
The parties then regulate the forms of exercise of management power and control by the employer, the rest times and the right to disconnect, the working tools, whether they come from the employer or from the worker. Finally, any conduct of disciplinary relevance will be identified and integrated.
The parties then agree on the modalities and timing for the days in which the employee's company presence will - if necessary - be foreseen, with the regulation of times, times and use of a workstation.
On the other hand, there is no change to the remuneration, including any bonus elements, benefits or company welfare instruments, provided for by the reference collective bargaining agreement (meal vouchers, production bonuses and the like), which will therefore remain unchanged.
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DPCM - 8 March 2020
As we anticipated, the Italian Government intervened for the first time with the DPCM (Prime Ministerial Decree) of 8 March 2020.
The article 2, paragraph 1, letter r) of the above mentioned decree provides verbatim:
"(...) letter r): the smart working method governed by articles 18 to 23 of Law no. 81 of 22 May 2017, may be applied, for the duration of the state of emergency referred to in the resolution of the Council of Ministers of 31 January 2020, by employers to all employment relationships, in compliance with the principles dictated by the aforementioned provisions, even in the absence of the individual agreements provided for therein; the reporting obligations referred to in art. 22 of Law no. 81 of 22 May 2017, are fulfilled electronically, also by using the documentation made available on the website of the National Institute for Occupational Accident Insurance; (...)".
The most important element is that of having disconnected the introduction of Smart Working from the element of the individual agreement, an element originally considered essential.
In this period of emergency, the employer, contrary to the original text pursuant to Article 18 of Law no. 81/ 2017, is recognized the right to unilaterally order the application of the smart working mode without the consent of the worker, for the sole purpose of ensuring health and safety, for a period of time which may extend, at discretion, until the end of the crisis Covid - 19.
This decision may also be expressed by a simple communication to the worker, together with the information on safety provided by Article 22 of Law no. 81 of 22 May 2017.
The employer will therefore be required to unilaterally regulate the aspects referred to in Law no. 81/2017 and, therefore, in the communication addressed to the worker, it will be necessary to indicate:
- the new modalities of management of the relationship, if modified compared to the ordinary regime;
- the characteristics that the workplace must have (no public or open-air places), with an indication of the minimum requirements of the premises in which the worker can carry out his work in Smart mode;
- the reference company subject (Manager, area manager or similar)
- how to interact with the rest of the team (scheduled meetings at set times)
- any instruments made available to the employer and those payable by the worker;
- the modalities and timing of the disconnection;
- the ways in which the worker can apply for the typical institutions of the employment relationship, such as sickness, leave, holidays, overtime and the like.
We would also like to recall, however, that this corporate determination could be part of a context in which a Smart Working agreement already exists at company level and/or even with the individual worker.
In this case, the company may, in accordance with the DPCM in question, implement it as it sees fit, with regard to the methods of presence in the company, the number of days per week, the methods of interaction with colleagues and, more generally, any other aspect that may have an impact on the health and safety of its employees.
The limitations on the type of workers that may be the subject of smart working remain unchanged: therefore, it is allowed for managers and apprentices, while it is excluded for trainees and collaborators, the latter subjects who, due to the nature of that relationship, already operate in a similar way to smart working.
With regard to the communications due to the bodies responsible for the activation of smart working, the Ministry of Labour has confirmed the possibility of fulfilling these obligations through simplified procedures that take into account, on the one hand, the absence of an agreement with the worker and, in any case, drawing inspiration from the basic rationale of Law no. 81/2017, on the organizational aspects of the company and on the - in this case obligatorily - transitory nature of the measure adopted.
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D. L n. 18/2020
On March 17, 2020 the Italian Government issued D. L. n.18 of 2020.
This text also brought additional measures to the discipline of Smart Working.
The first one, (art. 39 paragraph 1) intended for persons holding the benefits provided by Law no. 104/92 art. 3, paragraph 3, provides that " (...) until April 30, 2020, disabled employees under the conditions set out in Article 3, paragraph 3, of Law no. 104 of February 5, 1992,or who have a disabled person in their household under the conditions set out in article 3, paragraph 3, of law no. 104 of 5 February 1992, have the right to work in Smart Working mode, according to articles 18 to 23 of law no. 81 of 22 May 2017, provided that this mode is compatible with the characteristics of the service. The second one, (art. 39 paragraph 2) is instead intended for "(...) private sector workers suffering from serious and proven pathologies with reduced working capacity (...)", to whom "(...) priority is given to the acceptance of requests to carry out work in smart working way, according to articles 18 to 23 of law no. 81 of 22 May 2017 (...)".
The aforementioned provision therefore makes it mandatory for the employer to allow the worker who holds the rights pursuant to Law no. 104/1992 art. 3, paragraph 3, to provide his work in an smart working mode, where this mode is compatible with the worker's job and therefore, with the operational characteristics of the company's activity.
The activation of the smart working , unlike what is provided for the employer in the Prime Ministerial Decree of 8 March, cannot be determined unilaterally by the worker, since in any case all the prodromal organisational and regulatory activities prescribed by the original rule pursuant to Law no. 81/2017, already observed above, are necessary.
The same applies also to workers suffering from serious and proven pathologies, but who do not have the benefits of Law no. 104/1992, for whom a milder but equally important right of preference is provided, when the company is determined to implement agile work measures for its employees.
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Smart working in public administration offices.
In addition to the disciplines now seen, the same decree is also addressed to the public sector, where it provides in Article 87, that the method of provision of work under the regime of Smart Working, becomes the ordinary mode of work within the Public Administration, also in this case the exemption from the stipulation of individual agreements and, even in the absence of the aforementioned notice pursuant to Article 23 of Law no. 81/2017.
Milano 19 marzo 2020
Avv. Matteo Falchetti