Lawyer Monthly Magazine -December 2019 Edition

Working time in smart working One of the unclear areas mentioned above lies in the boundaries of compatibility between smart working and working time discipline. Even before examining the employer’s obligations, it may be useful to observe that there are some contradictions in the provisions of the said law in regards to working time, since the phase of its definition. In the same first paragraph of Article 18 of Law No 81/2017, in fact, the law provides that the employee is not subject to “precise time constraints”, but at the same time clarifies punctually that the work performed must still be contained “only within the maximum duration of the daily and weekly working time, resulting from the law and collective bargaining”. Thus, while Article 18(1) introduces flexible rules on performance, even allowing the parties to agree on the organisation of work in phases, cycles and objectives, it also reiterates the strict principle of maximum daily and weekly working time. This is certainly not to say that “agile work” should have been completely unrelated to any reasonable time limit; of course, we are well aware of the risk that a total time limit free form of work can circumvent the rules set out to protect the employee. However, it should be pointed out that the freedom of the parties to organise work by phases, cycles and objectives should have allowed the employer and the employee to overcome, at least, the anachronistic mindset of calculating the maximum daily and weekly working hours, which can’t be applied to intellectual work. Moreover, it would certainly not have been the first time that such a derogation had been introduced, given that Article 17(5) of Legislative Decree No 66/2003 - almost fifteen years ago - had already provided for the exclusion of the rules on minimum daily rest for “services rendered in the context of home work and working remotely”, i.e., the “ancestors” of smart working. The challenge for legal consultants will be to persuade the courts to admit even for smart workers the most general derogations on working time provided for in the aforementioned art. 17, par. 5 of Legislative Decree no. 66/2003, if the activity to be performed grants the employee a significant faculty of self-organisation and the service itself is to be rendered through computer tools. What should a company do to introduce smart working? A company intending to introduce smart working should start first from an accurate analysis of its organisation, the objectives it intends to pursue, the possibilities of interaction with trade unions, and the needs expressed by its employees. In particular, then, the legislator has provided - for the purposes of the introduction of the instrument - the stipulation of a written agreement, particularly detailed, relating to the modality of agile work. It shall include clear details about: - the forms of exercise of managerial power and control by the employer; - the regulation of the execution of work outside company premises; - the tools used by the worker; - the technical and organisational measures necessary to ensure the employee to be disconnected from technological work equipment; - conduct connected with the performance of work outside company premises, which gives rise to the application of disciplinary sanctions. What makes the employer’s obligations more cumbersome is not so much the form of the agreement as to its content. In fact, requiring the agreement to identify the forms of exercise of managerial power and the power of control outside company premises makes it inevitable to suggest to the employer to consult a professional in the sector, to 73 DEC 2019 | WWW.LAWYER-MONTHLY.COM Expert Insight By Luca Daffra and Sergio Passerini, Ichino Brugnatelli e Associati “Being assisted by a legal adviser is often indispensable: the law has, in some ways, limited the opportunities that smart working intrinsically offered and in other ways, has left some unclear areas.”