Urbino, 25 Sep – If until a few months ago the agile work, introduced at the regulatory level in 2017, was widespread only in a few companies, with the emergency COVID-19 and becoming a “functional tool to contain the contagion” it has “literally spread, posing questions of no small importance at the level of labor law and in terms of human resource management”.
To present in these terms the great diffusion of smart working in Italy and, especially, to address the peculiarities of “emergency” agile work – with reference to the labor law plan, the discipline of safety at work and the management of human resources – is an essay, published in “Work safety law“(Magazine of the Olympus Observatory and six-monthly publication of University of Urbino) and entitled “Agile work: reconciliation between health protection and work needs”.
The essay, edited by Alessio Giuliani (human resources officer and PhD student in Labor Law – University of Rome “La Sapienza”), first of all recalls that with agile work (whose English-speaking counterpart is smart working) “means a particular method of carrying out the subordinate employment relationship” governed by Law n. 81 of 22 May 2017, bearing “Measures for the protection of non-entrepreneurial self-employment and measures aimed at favoring flexible articulation in the times and places of subordinate work”.
Its characterizing features are “the possibility of carrying out the work performance partly inside and partly outside the company premises, and in the latter case without a fixed position”; the not being subjected, the service, to “strict time constraints, without prejudice to the maximum limits set by the legislator and by collective bargaining; the use of technological equipment, posed as possible but which is a constant in practice “.
In the article we focus on the following topics:
The differences between ordinary and emergency smart working
Alessio Giuliani after having reviewed the main regulatory provisions that have followed one another over the last few months and remembering that agile work also references the Shared protocols signed by the Government and the social partners, it wonders if the agile work that is being experienced today is the one governed by the original legislation or is it something new.
And this last conclusion “turns out to be the most convincing”.
In this regard, the contribution considers various elements:
- the alternation between moments of smart work and presence at the workplace: if the 2017 law specifies that “there should be an alternation between phases of remote work and a return of the worker to the office for direct confrontation with superiors, exercise of his trade union rights and, more generally, favor the socialization with colleagues ”, currently“ the return to the office is contingent precisely in the light of the general provisions ”.
- a second distinctive feature of the agile work is in making a “work performance in a defined period of time (daily working hours) without constraints or time, alternating work periods with breaks, or place, as it can tend to be carried out anywhere “. And, in this sense, smart working is well distinguished from teleworking which “provides for a fixed location and generally predefined work rhythms”. However, “the limitations to mobility, especially in the phase from 8 March to 3 May, have actually brought smart working closer to telework: the performance of work at the company headquarters has since become an exception “.
- another difference between the emergency regime and the ordinary regime can be found in the “nature of the act through which the working relationship is established in an agile way. First an ‘agility’ agreement, now a unilateral act, called ‘agility regulation’ ”.
- the author then focuses on ratio of the institution. If by law no. 81/2017 “coincides with the aims of making the production system more efficient, reducing travel times and achieving a tendential balance between private and working life”, in the current phase the primary objective of smart working is to “reduce the movement of people and avert a new epidemic wave”.
Ultimately more than agile work, for this emergency smart working “Could talk about remote work, by virtue of the fact that the freedom to choose the place of work has given way to the obligation to carry it out from the place of residence or domicile, as a ‘place needed’ “.
We refer to the reading of the essay which then also focuses on the merit jurisprudence which on several occasions has enhanced the recognition, in this emergency phase COVID-19 and in relation to the related legislation, the “right to work in agile mode”.
Agile work and the protection of health and safety
The contribution then reports the implications of agile work in terms of health and safety protection in the workplace.
If, with respect to the smart worker, the employer “takes a ‘more nuanced’ position, it is not so immediate to grasp the implications of the most recent regulatory provisions on safety at work, as the emergency rules are limited to contemplating the double derogation relating to the provisions on individual agreements and disclosure obligations and, at the same time, they still impose the compliance with the principles dictated by articles 18 to 23 of law no. 81/2017“. That is to say provisions for the protection of health and safety which are obviously “challenging”.
It should be remembered that the employer “has the obligation to guarantee the protection of health and safety even if the work performance is rendered in an agile way, and the worker himself is required to participate in the implementation of the prevention strategy, following the logic of participatory security on which TU n. 81/2008 (pursuant to art. 22); the employer responsibility for the safety of the technological tools assigned to the worker (outlined in art. 18) “. And some “authoritative exponents of the doctrine have proposed an extension by law of the guarantees provided for teleworking, whose regulatory reference point is in art. 3, paragraph 10, of the Consolidated Law “. In this article of Legislative Decree 81/2008, reference is made, among other things, to the observance of the “discipline on equipment equipped with video terminals (present in Title VII) and, of the discipline of Title III if the equipment is provided by the employer; the obligation to inform workers about company policies on health and safety in the workplace “and the possibility of accessing the workplace. An extensive interpretation which, however, “without an ad hoc intervention by the legislator, does not seem feasible”.
In any case, there is no doubt that “the recourse to smart working (when not mandatory) should be privileged where it is not possible to guarantee neither the use of adequate PPE nor social distancing, conceiving it as an ‘organizational measure to be used in terms of security’ “.
Smart working and the need for a balance point
Ultimately, the author emphasizes, “it is clear that some classic paradigms of business organization are now outdated. And, in fact, the companies that have played in advance, or that have approached more quickly to new modulations of schedules and to conceive new organization of work spaces, somehow seem to embody the rationale underlying law no. 81/2017, i.e. the need for reconciliation between the professional sphere and the personal sphere of workers”.
The lockdown then gave “a further acceleration to the evolution of the characteristics of the subordinate employment relationship”. The “traditional classification as the provision of work energies subjected to the power of heterodirectional employers” is downsized and the work increasingly takes on the features of a ‘result performance series’”.
However, “the need for identify a point of balance between, on the one hand, the “protection of public health and access to essential services”, and, on the other, the “safeguarding of the labor market, with a preponderant role assumed by the preparation of effective labor law safeguards”.
And it appears crucial – concludes the author – that in the coming months “the foundations for the transition from a discipline of emergency agile work to a rethinking of the standard normative corpus, which still sees the law n. 81/2017 as a reference point “. And, at the same time, we hope for an “awareness of the opportunities that arise for both parts of the employment relationship”: on the one hand “organizational efficiency and containment of labor costs“And on the other” achievement of a new balance between work needs and family needs”.
In conclusion, we refer to the full reading of the essay, which details the sources and citations used, and the news regarding the possibilities of agile work contained in the decree-law 8 September 2020, n. 111.
Download the document from which the article is taken:
University of Urbino Carlo Bo, Olympus Observatory, Occupational safety law, ” Agile work: reconciliation between health protection and work needs”, Edited by Alessio Giuliani – Human Resources Officer and PhD student in Labor Law – University of Rome“ La Sapienza ”(PDF format, 391 kB).
Download the reference legislation on COVID-19:
DECREE-LAW n. 104 of 14 August 2020 – Urgent measures to support and relaunch the economy.
Read the other PuntoSicuro articles on the new coronavirus Sars-CoV-2
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