Lawyer Monthly Magazine -December 2019 Edition

With regard to the issueof safety at work, Article 22 of Law no. 81/2017 requires the employer to provide the employee and the workers’ safety representative, at least once a year, with written information identifying the general risks and the specific risks connected with the particular mode of execution of the employment relationship. Such forecast, which is clearly in the interest of the worker, raises some doubts inasmuch as, with particular reference to small- medium-sized companies, it obliges the employer to bear additional costs. Therefore, it cannot be excluded that by such a provision, as well as the provision relating to the articulated written agreement to be stipulated between the parties, the legislator may have unconsciously discouraged the use of this instrument, especially in the sector of small and medium enterprises, which could consider “agile work” choice an uneconomic one. The issue of occupational accidents and diseases also raises some doubt as to the possible consequences of the practice of “smart working”. First of all, it should be made clear that Article 23 of Law No 81/2017 - in order to obviate the risk that employers might be discouraged from temporal suspension from his/ her availability at a distance through modern technological instruments. The legislator, thus, demonstrated a shared sensitivity to the negative consequences of prolonged use of modern technological tools. Finally, it may be useful to add that the agreement on “agile work” can be stipulated for a term or indefinite period, in the latter case the parties can terminate the agreement with a notice of not less than thirty days. However, Article 19(2) of Law No 81/2017 allows both contracting parties, in the presence of a justified objective reason, to withdraw before the expiry of the period or without notice in the case of an agreement for an indefinite period. In this case, however, attention should be paid to any collective bargaining disciplines that are more favourable, which could, for example, include the need for the worker’s consent for reversibility from agile work (or working from remote) to ordinary work. Safety at work and smart worker accidents Another unclear area in the discipline of “agile work” is the one relating to safety at work and possible accidents and occupational diseases of the smart worker. avoid incurring dangerous errors in the drafting of contractual clauses and the consequent possible disputes. With regard to the regulation of the employer’s control powers, it will be interesting to verify how jurisprudence will coordinate its guidelines on the legitimacy of controls on certain conduct of the employee unrelated to the performance of his/her work, where an agreement on “agile work” should lack an explicit discipline on the control powers of the employer. It is not possible to exclude disputes about the legitimacy of investigations carried out by the employer through an investigative agency (for example, during an employee’s absence due to illness or for the enjoyment of permits with specific purposes, such as those for assistance to the disabled), in the absence of a specific agreement on control methods, to be included in the smart working agreement. Likewise, the agreement relating to the conduct of the agile worker to be considered illegitimate and such as to determine the application of disciplinary sanctions could be asourceofgreatconcerntothe employer, where either the list of employee conduct is poorly laid down or any potential smart worker’s conducts relevant at disciplinary level are not governed by appropriate clauses. The current regulation of this instrument by the law substantially forces an employer, hence, to turn to a professional during the phase of the drafting of the smart working agreement, in order to avoid any errors that may negatively affect the powers of management and control of the employer. In short, even at the time of its genesis, the drafting of an agile employment contract is anything but “agile”. On another note, in relation to the aspect of “disconnection”, it should be pointed out that, for the first time, the legislator focused on the need to guarantee the employee the possibility of a 74 WWW.LAWYER-MONTHLY.COM | DEC 2019 Expert Insight By Luca Daffra and Sergio Passerini, Ichino Brugnatelli e Associati “In short, even at the time of its genesis, the drafting of an agile employment contract is anything but “agile”.