The new regulation on Smart-working in Italy

On May 10, 2017 the Italian Parliament has approved a new piece of legislation containing measures for the protection of the self-employees and to promote smart-working.

The new regulation on self-employees will affect more than two million consultants introducing a series of new measures in their support, concerning welfare requirements, unfair clauses and maternity.

However, the most innovative provisions are indeed those related to the smart-working.

Before this reform there was not any specific regulation on smart-working in Italy. In fact, article 1 of Law no. 877 of 18 December 1973 and article 2 of Law no. 858 of 16 December 1980 provided for the regulation of the so called “teleworking”, an old and unused type of employment contract subject to particular and strict conditions. This “teleworking” contract has nothing in common with the new Law on smart-working that identifies the employee who can work from home, even regularly, using computer and electronic devices, instead of performing his/her tasks from the company’s premises.

Due to the absence of a specific legislation, the use of smart-working has not registered a significant growth in Italy. According to a study made by the Polytechnic of Milan in October 2016, there are only about 250,000 workers, i.e. 7% of the total of employees, executives and managers, working flexibly in terms of place, time and equipment, who are mainly employees of multinational companies, and Italy occupies the last position in Europe for percentage of agile workers (ILO-Eurofound report “Working anytime, anywhere: The effects on the world of work” 2017). 

The new Law has therefore the aim to incentivize all employers to take a comprehensive and strategic approach in order to modernize working practices across their organizations with a view to climb the rankings.  
In detail, the recently approved Law has the purpose of promoting the competitiveness and facilitate the work-life balance and the “agile working” as a way to carry out the activities in the framework of the employment relationship through the execution of agreements, also envisaging forms of work organized through phases, cycles and targets without specific restrictions in terms of workplace and working hours and with the help of technological equipment for the performance of the activity. According to such Law, the working activity can be carried out partly at the business premises and partly elsewhere and without a fixed location, within the limits of daily and weekly working time provided by the Law and the collective bargaining agreements. The employer is responsible for safety and for the proper functioning of the equipment provided to the employee for the performance of the duties.

The new Law indicates the specific agreement between the employer and the employee as the source of the actual ways to implement the “agile working”. In particular, such agreement will have to set out rest times as well as the technical and organizational steps to be taken to ensure that the worker actually “logs off” from the technological equipment. The agreement can be fixed or permanent and the withdrawal is specifically regulated: the notice period to withdraw from the ‘smart-working’ arrangement will be equal to no less than 30 days for permanent agreements, whilst for fixed-term contracts the parties can only withdraw if there is a justified reason. The justified reason also entitles the parties to withdraw without notice from a permanent agreement. 

The remuneration and benefits of the smart-workers must be equivalent to those of the employees performing the same duties entirely at the company’s premises.

One of the most important key provisions of the Law is the regulation of the disciplinary power and remote control.

In this regards, the agreement between the employer and the employee must identify the behaviors connected to the execution of the employment activity outside the company’s premises that may entail disciplinary actions.

Moreover, the agreement must regulate the exercise of the power of remote control over employees’ activities performed outside of the office, in accordance with article 4 of the Statute of the Workers. In fact, it should be remembered that this provision (as amended by the Legislative Decree no. 151 of 14 September 2015) sets out the rules for employers operating remote control over employees ‘activities, including on use of equipment and services supplied by the employer also in relation to the internet, emails and telephones: the remote control will therefore need to be duly addressed by the parties in the smart-working agreement.
A significant importance is also given by the Italian legislator to Health and Safety: the employer is required to deliver, at least annually, to the employee (and to the Health and Safety representative) a written notice identifying both general and specific risks connected to the tasks carried out by the employee outside the business premises.

The new Law also clarifies that the employee must cooperate with the employer in order to implement the measuresto address the risks connected to the performance of the working activity outside the Company. The employees must benefit from an insurance against such risks and the protection also covers the accidents occurred during the travel to the workplace, even if the choice of the workplace is based not only on the requirements related to type of work to be carried out, but also on the employee’s needs to combine these requirements with his or her commitments outside work and such choice is reasonable.
 
Angelo Zambelli is a member of the Firm Executive Committee and leads the Employment and Industrial Relations department of the Firm.

He amassed an outstanding reputation in employment and labour law, industrial relations, and issues relating to agency contracts and labour law disputes acquiring in-depth knowledge of the planning and implementation of extraordinary finance operations and restructuring plans, including the reorganisation and downsizing of subsidiaries of Italian and international groups.

He works side by side with clients advising them on the handling of complicated industrial relation matters and often represents companies during negotiations.

He is also a member of AGI, of AIDP, member of EELA and ELArepresentative for Italy, as well as member of ABA and IBA.

Angelo Zambelli is an established lecturer at many conferences organised by IBA (International Bar Association), ELA (Employment Law Alliance) and ABA (American Bar Association).

In addition to his native Italian, he speaks English, French and Spanish.

Angelo can be contacted on +39 02 30309330 or by email on azambelli@grimaldilex.com