Q&A – Smart Working, Agile Working and Telecommuting

Q&A – Smart Working, Agile Working and Telecommuting

What is the difference between smart working, agile working and telecommuting? Are they the same thing?

No, smart working, agile working and telecommuting are not the same thing. Let’s first start with the fact that it has been recently regulated after the Law n.81 / 2017 was passed. Smart working, as stated in Article 15 of Chapter II of the new Law, aims to increase competitiveness and facilitate the reconciliation of work life and personal life as objectives of the legislative formula itself. In addition, agile work is described as “method of execution of the subordinate employment relationship established by agreement between the parties, also with forms of organization by phases, cycles and objectives and without precise time or place of work restrictions, with the possible use of technological tools to carry out the work activity”.

The scope of application of the new law is by its very nature and vocation generalized and perhaps, we could say, it represents the conceptual evolution of telework which is a much older legal institution, dating back to 2002, and which did not find a great outlet in the Italian business reality back then. Suffice to say that it remained confined to an interfederal union agreement of 2004 and limited to a small part of the PA.

Agile work, on the other hand, is on the “test bench and gives encouraging signs”.

With the legislation on agile work, new rights have been introduced, such as that of “disconnection”, not present in telecommuting.

Smart working is different from agile work and depends on various professionalities, This is not even specified in the Italian law on agile work.

In “agile work”, is the worker obliged to report to the company?

The new law prescribes that in the agreement relating to the stipulation of “agile work” the time and place of work, as well as the time that the worker spends in the company rather than the time he spends at home working, are indicated .

In essence, it is the agreement between the parties that determines whether the worker will work in the company’s premises or not.

Agile work is described as a new way of establishing a subordinate employment relationship, so it must be remembered that the worker remains subject to the employer’s directives, which is why the worker cannot refuse to appear in the company when this is expressly requested by the employer.

2. In “Agile Work”, is the worker obliged to report to the company?

In the agreement relating to the stipulation of “agile work,” the new law prescribes an indication of the time and place of work, as well as the time that the worker spends in the company and the time he spends at home working.

In essence, it is the agreement between the parties that determines whether the worker will work in the company’s premises or not.

     Agile work is described as a new way of establishing a subordinate employment relationship, so it must be remembered that the worker remains subject to the employer’s directives, which is why the worker cannot refuse to appear in the company when this is expressly requested by the employer.

3.  Smart Working – what happens in the event of an accident?

Law 81/2017 in Articles 23 and 24 is very clear in establishing that this modality of execution of the work performance remains in all respects subject to the common provisions on compulsory insurance against accidents at work – DPR 30 June 1965 n.1124.

The protection in the event of an accident is therefore equal to that of the worker who works in the company itself.

The new law takes care of regulating normes for the smart worker, even in the case of the so-called accident in itinere – the case in which the accident occurs on the worker’s journey from home to work, that is, the place where he performs his activity.

The administrative practice relating to the opening of the insurance file in the event of an accident at work is also the same, being applicable, as explicitly referred to in the legislation, the provisions of law 608/1996 and subsequent amendments.

4. When and how can the agile worker leave the workplace?

Law 81/2017 explicitly provides the smart worker with the rest times which must be explicitly included in the employment contract, as well with a real, newly conceived right, i.e. the right to “disconnect”.

Rest times must be contractually identified in the light of the general principle that working hours may not exceed the limits set by individual collective agreements on a daily and weekly basis.

Regarding breaks, we can certainly refer to the provisions of any collective employment contract.

However, it is necessary to take into account the general principle that all legislation is geared towards maximum flexibility and the smart worker, by definition, works without precise time constraints.

5. How can the agile worker be supervised?

Yes, the agile worker can be supervised, but great care must be taken. Law 83/2017 expressly refers to art. 4 of Law 300/1970, as amended by Law 183/2014 (Jobs Act), which essentially provides a balance between the interest of the employer and the worker.

Remote video surveillance is essentially legitimate if it is agreed with union representatives, or with the consent of the Labor Inspectorate which is territorially competent.

The same must be prompted by specific technical-organizational and safety needs.

Future collective agreements are likely to regulate the aspect of smart worker surveillance.

This does not mean that the application of “remote control” must not be made via labor inspectorate and this does include a specific technical worker protection measures to be adopted.

Essentially, common ground between interests and complex interdependent normatives and regulations must be found. Constitutional interests are at stake, which as such must be respected and guaranteed.