On 8 February 2016 the Italian Government presented a draft legal framework to regulate what it terms 'Smart working' in an attempt to boost companies' competitiveness through the improvement of individual productivity while facilitating a better work-life balance.
The text of the draft law was approved by both the Senate of the Republic and the House of Deputies, receiving final approval from the Senate on 10 May 2017. This means the draft law should receive full validity and come into effect upon the signature of the President of the Republic and publication in the Official Journal of the Italian Republic.
The new ‘Smart Working’, law, has been designed in order to enhance work performance and allow employees to work with more flexibility rather than to create yet another format for employment contracts.
The law - provides that 'smart working' arrangements should be in writing between the parties entering into the agreement with a view to regulating “the working activities performed outside the premises of the company, including the employer’s power of direction and control, the instruments used by the employee to carry out the working activity, the employee’s rest periods as well as the technical and organizational measures necessary to ensure that the employee is disconnected from the work equipment”. In addition, agreements need to specify whether the 'smart working' arrangements are on an open-ended or fixed-term basis.
The most innovative elements of the new legislation provide for more flexibility in working arrangements particularly with reference to:
− the place where the work activity is carried out (i.e. the employer’s premises or elsewhere);
− the direct control of the employer on the working activity i.e. the level of direct management of the work activity by the employer and
− the working hours.
The law states that through 'smart working' “work activity is performed within the company premises and also outside without a fixed station”.
Considering that the employee can freely choose the place in which to carry out his/her work activity, the law holds the employee liable for his/her own safety as the chosen place cannot be monitored or “adjusted” according to the employer’s standards on safety at work. The employer must give information, at least on an annual basis, on the general and specific risks related to the smart work activity to the smart worker and to the assigned Employee Representative for Safety at Work while also cooperating with the employer by implementing certain measures relating to safety compliant with 'smart working'.
Regarding the insurance coverage of work related accidents, the new legal framework applies the same protection to smart workers, regardless of the place of work chosen by the employee. However the employer has an obligation to inform the competent labour office at the beginning of a 'smart working' agreement of the change in the employment relationship and thereafter regarding any subsequent changes.
With regard to employment activities carried out outside the employer’s premises i.e.' offsite’ activities, the new law states that this should be regulated by the parties in their employment agreement, in compliance with section 4 of the Workers’ Statute with reference to controls at distance. For example, it would be useful to foresee in the agreement how the work activity can be remotely controlled by the employer (on the basis of the connection sessions or the number of practices to be executed) in order to guarantee the productivity goal while also avoiding 'abuse of control' by the employer.
Economic Enhancement and Performance
It is hoped that 'smart working' might mark a turning point with regard to the essential concept of the economic enhancement of employment performance, which until now has been rigidly anchored in traditional criterion based on units of time. In fact, the law states that 'smart working' arrangements can also be made without precise time constraints. The only limit is the maximum daily and weekly duration of the working hours which is regulated by laws and collective bargaining agreements. In order to ensure that the smart worker is not subject to pressure within his/her personal space due to remote control, the legislation provides for the obligation to specify within the agreement, rest times and technical and organizational measures to be applied in order to allow time for 'disconnection' for the smart worker from the working instruments (i.e. “right to disconnection”).
Lastly, from an equality of treatment perspective, the new regulatory discipline provides for a “non-regression” clause, namely that the 'smart worker' must be guaranteed economic and regulatory treatment not less favorable than those applied to non smart workers covering the same positions as well as the right to lifelong learning.
Many companies, anticipating the legislator, have already implemented flexible working trials, similar to ‘smart working’ (i.e. in a recent agreement with trade unions, Ferrovie dello Stato – the Italian national railway company - has introduced smart working trials for 500 workers).
Now, according to the new regulatory framework, these companies will have to check whether the trial agreements comply with the new regulations and, if necessary, adjust their current arrangements accordingly.
Considering that the new law has only recently been approved, it’s not yet possible to determine how it will be used in practice. Nevertheless, it is clear that the intention of the government is to give support to and better regulate 'smart working' in a much more specific manner to encourage implementation within companies so as to create certainty in a currently 'muddled' field. Such clarity will be welcomed by many who already feel the pressure of an unregulated digital working environment.