The quick technological progress and the rising of new business models are structurally changing the practice of industrial relations in the whole globe. New rules are taking shape in the different jurisdictions to face the new scenarios and the new challenges effectively.
The volume “INDUSTRIAL RELATIONS LAW ACROSS THE WORLD – Current legal frameworks and trends”, edited by De Luca & Partners as contributing editor for Wolters Kluver types, which has reached its second edition, is aimed at analysing the legislative situation of the most important countries in the world, bringing out the common trends, but also the essential differences amongst the different legal systems in facing the increasing higher interweaving of worldwide economies, the systemic disruption imposed by the 4.0 industry and the general increase of competitive tension in global markets.
The challenges for organisations and for employees and their representatives are becoming increasingly more complex and urgent, upon a future that is changing very quickly and whose outcome is not perfectly outlined.
The labour market shows a clear tendency towards greater flexibility to face global competition. In addition to protect the rights of trade unions, legislative systems try to foster instruments throughout the world allowing the necessary flexibility also in terms of employment agreements, made possible by having greater recourse to the decentralisation of collective national bargaining agreements (the latter is a very clear tendency, moreover, in Europe).
As always happens, the measures adopted by legislators change from one country to another to the extent in which they must take the cultural context, the financial conditions, the political framework and the impact on employees into account. Nonetheless, the extent of the changes in place makes it necessary to find new paths in the dialogue between companies and trade unions, leaving any ideological position which is no longer aligned with the new approaches in industrial relations.
“INDUSTRIAL RELATIONS LAW ACROSS THE WORLD” offers an analysis of 19 markets – Argentina, Austria, Belgium, Brazil, Canada, Chile, Colombia, the Philippines, France, Germany, Great Britain, India, Indonesia, Italy, Luxembourg, Portugal, Singapore, Spain and the United States – made thanks to the collaboration of De Luca & Partners with some of the main employment law firms in the world. Executives, legal advisors, managers and human resources managers may request the volume, free of charge, by filling in the following form.
The Data Protection Authority, with “Measure no. 216 dated 4 December 2019“, confirmed an already consolidated position, according to which employers that keeps an employee’s company email account active after the termination of the employment contract and accesses the emails contained in the mailbox, commits an offence.
The case
A company used the labour court against a former employee because he offered products in direct competition with its own products. The information in support of the action had been collected by the applicant company by logging in to the email address account of the former employee even after the termination of the employment contract.
The worker thus complained to the Data Protection Authority, claiming that his former employer had not deactivated his email account and had accessed the messages he had received.
The company, in challenging the complaint filed by the employee, stated that the failure to deactivate the account and the simultaneous forwarding of emails to the address of the head of the Information Technology department had been arranged because (i) the former employee had failed to send customers a communication with the new company references. Adding, moreover, that (ii) only correspondence containing business messages had been opened and not personal messages and that (iii) the former employee was aware of the “business practice” according to which the employer, after the termination of the contract, would check correspondence addressed to him.
Acknowledging that the facts complained of are prior to the entry into force of EU Regulation 2016/679 and that the information was given to employees verbally, the Data Protection Authority in any case declared the repeated use of the individual company account of a person no longer belonging to that company organisation unlawful.
The Data Protection Authority, in fact, stated that the employer must act in accordance with the principles of lawfulness, necessity and proportionality, which are the foundations of the matter of personal data protection, ordering the removal of corporate email accounts attributable to identified or identifiable persons. At the same time as closing the account, according to the Authority, the employer is obliged, if necessary, to equip itself with automatic systems to inform third parties and provide them with alternative addresses to contact. In addition, the employer must take appropriate measures to prevent incoming messages from being displayed throughout the period when the automatic system is active.
According to the provisions of the Measure, it is the implementation of appropriate technical and organisational measures that makes it possible to balance, on the one hand, the interest of the owner (alias the employer) to access the information necessary for it to continue the management of the work activity and, on the other hand, to ensure respect for the legitimate expectation of the worker to confidentiality on correspondence. In addition, in the opinion of the Data Protection Authority, the adoption of internal rules on the basis of which information on technical and organisational management adopted is shared with employees is one of the correct measures to be implemented.
The Central Directorate of Supervision, Legal Affairs and Litigation of the National Labour Inspectorate (“INL“), with note no. 9728 dated November 12, 2019, authorised the installation of an application on smartphones assigned to so-called Drivers, allowing for their geolocation during the delivery of goods. This is provided that the companies concerned are not RSAs or RSUs or, if incorporated, the attempt to reach agreement has been unsuccessful.
The facts
The INL’s favourable opinion came following the request for authorisation made by certain companies, carrying out transport and delivery services operators for a company, to be able to install, on the smartphone assigned to delivery workers, a special order management application developed by the client company itself but exclusively owned and available to them.
The opinion of the INL
According to the INL, the installation of this application on Drivers’ smartphones does not breach Article 4 of the Workers’ Statute.
Firstly, according to the INL, there are the specific “organisational and production needs” required by the articles of association, so that the application:
Again, according to the INL, the application is also functional to the need for “occupational safety“, given that it:
In addition, the INL pointed out that the device does not allow for the continuous geolocation of the worker. In fact, it is activated only at the time of delivery of the goods and, again, in the event of a request for help from the same worker and is then deactivated again immediately afterwards.
In giving its go-ahead, the INL has dictated a number of conditions, including the following:
data must be retained for a period not exceeding the time strictly necessary for the purposes for which it was collected.
The Court of Appeal, Penal Section, with sentence 50919 of 17 December 2019, confirmed that the installation of video-surveillance systems, resulting in the remote control of workers’ activities, must be preceded by reaching a trade union agreement or, failing that, by obtaining administrative authorisation. The consent of the workers concerned is not sufficient.
Facts of the case
The Court of Milan had ordered a contractor to pay a fine for breaching Articles 114 and 171 of Legislative Decree 196/2003 and Articles 4, paragraph 1 and 38 of the Workers’ Statute. This was because the entrepreneur had installed 16 video surveillance systems within his company, with the declared aim of controlling access to them and acting as a deterrent to criminal events, which, however, allowed for the remote control of employees’ activities. The installation had taken place without prior union agreement or administrative authorisation.
On that matter, in fact, the Court had pointed out that the entrepreneur had indeed asked the peripheral bodies of the Labour Inspectorate territorially competent to issue the authorisation but, before obtaining it, the entrepreneur had installed the aforementioned systems.
Furthermore, according to the Court, the disclaimer issued in court, signed by all the employees and sent in advance by the entrepreneur to the Inspectorate, could not be applied, given that it:
The entrepreneur appealed against the judgement at first instance, arguing, inter alia, that the consent given by the employees should be understood as an element that would exclude the criminal relevance of the disputed conduct.
The appeal in question was converted, in accordance with the principle of favor impugnationis, into an appeal by cassation, given that it could not be appealed as only the fine had been imposed.
The decision of the Court of Appeal
The Court of Appeal, in declaring the appeal filed by the entrepreneur as inadmissible, firstly noted that the case in question is governed by Article 114 of Legislative Decree 196/2003, which also followed the entry into force of Article 15 of Legislative Decree 101/2018 (Decree adapting national legislation to EU Regulation 2016/679 on the protection of personal data), provides for the following: “the breach of the provisions set out in Article 4, paragraph 1, (…) of Law no. 300 dated 20 May 1970 shall be punished with the sanctions set out in Article 38 of the same law“.
In the opinion of the Court of Appeal, “the circumstance (…) according to which the visual recording system was installed in order to guarantee the safety of the employees themselves, given that the purpose of guaranteeing occupational safety is one of the factors which, in abstract terms, make it possible to activate this type of system, notwithstanding, however, the implementation of the subsequent forms of guarantee for the protection of workers provided for by the aforementioned preceptive regulations“.
Equally irrelevant, according to the Court of Appeal, is the circumstance that the entrepreneur had not personally had access to the content of the video recordings, given that the relevant system was managed by a third party. This is because Article 4, paragraph 1, of the Workers’ Statute prohibits, in the absence of a prior trade union agreement or, in the absence of prior authorisation issued by the Labour Inspectorate, the installation of remote video surveillance equipment.
The Court of Appeal also underlined that Article 38 of the Workers’ Statute does not protect “the personal interest of the individual worker nor the arithmetical sum of each of them, but it does safeguard the collective and super-individual interests, although a possible interference between the injury of the legal positions of the trade union representatives and those of the individual workers from time to time cannot be excluded”. And the employer’s conduct, which does not allow for discussion with trade union representatives, causes objective damage to the collective interests of the trade union representatives. The trade union representatives are, in fact, “responsible for ascertaining, given that they are holders ex lege of the relevant right, whether or not the audio-visual equipment , from which the employer intends to make use, has, on the one hand, the ability to infringe the dignity of workers for their potential finalisation to the remote control of the performance of the work activity and to verify, on the other hand, the effective compliance of said systems with the technical-productive or safety requirements so as to regulate, through collective agreement, the terms and conditions of use and thus free the entrepreneur from the impediment to their installation“.
In this context, the Court of Appeal, citing a precedent of its own, pointed out that the employer, if it installs installations without complying with the procedural guarantees provided for in Article 4 of the Workers’ Statute, behaves in an anti-union manner, which can be repressed with the special protection provided for by Article 28 of the Workers’ Statute (see Court of Appeal, Labour Section, 16 September 1997, no. 9211).
Furthermore, according to the Court of Appeal, the procedural guarantees dictated by Article 4 of the Workers’ Statute are based on the fact that workers can be configured as weak subjects of the employment relationship. Otherwise, continued the Court of Appeal, “it would suffice for the employer, in order to circumvent the procedure imposed by law, to make each employee, at the time of hiring, sign a declaration by which he accepts the introduction of any control technology to obtain consent, whose free determination appears vitiated by the fear, in case of refusal to sign the declaration in question, that he will not be hired”.
In conclusion, in the opinion of the Court of Appeal, the consent or acquiescence that the worker may have given or has given does not perform any exempting function, given that the protected collective interest remains outside the theory of the consent of the person entitled.
In Official Journal no. 304 dated 30 December 2019, Law no. 160 of 27 December 2019 was published. “Budget Law 2020“, in force since 1 January 2020.
There is a great deal of news relating to labour and social security.
News relating to labour and social security.
One of the main innovations characterising the 2020 Manoeuvre concerns the reduction of the so-called “tax wedge” on employees. A comprehensive reform of the IRPEF (Personal Income Tax) regime is inaugurated through a progressive plan to reduce payroll taxation, which will produce its first effects, in economic terms, as of July 2020. In parallel and in support of this reform, the establishment of a Fund for the reduction of the tax burden on employees with a budget of €3 billion for 2020 and €5 billion from 2121 onwards has been provided for.
Having said that, it is expected, with certainty, that the details of the bonuses granted to employees and the possibility for companies to review the amount of taxation on labour will become known. The text of the 2020 Budget Law, in fact, refers to the adoption of a subsequent implementing decree to regulate the operational aspects of the Manoeuvre.
Amongst the changes made, there are new tax exemption thresholds for “meal vouchers” which introduce a daily non-taxable limit of €8 for electronic meal vouchers and €4 for those in paper format. In order to take advantage of the tax relief introduced, meal vouchers must be intended for employees and collaborators whose remuneration is included in the income from employment or, in any case, assimilated.
Furthermore, with the entry into force of the new measure, funding for “Industry 4.0” is confirmed with the condition precedent that the activities implemented must ensure environmental sustainability. Amongst the novelties contained in the package of measures are the interventions in support of start-ups and small- and medium-sized enterprises, provided that they are innovative.
The “2020 Recruitment Bonus” is reconfirmed to support the re-launch of employment of young people aged up to 35 years. Employers that, as of 1 January 2020, will hire young people under the age of 35 under an open-ended contract will be able to benefit from a tax break. This benefit provides for the payment of 50% of the mandatory INPS (social security) contributions for the first 3 years of the contract and, in any case, up to a maximum amount of €3,000 per year of tax relief. All employers, regardless of the region in which they are based, will be able to take advantage of this innovation.
For employers in the South of Italy, on the other hand, the bonus increases to 100% relief on compulsory contributions for the first 3 years of the term of the contract term (the so-called “2020 South Recruitment Bonus“).
In both cases, the condition remains that, for the first 6 months of activity, the hired young person cannot be dismissed.
News in the field of social security As regards social security, on the other hand, (i) the “Quota 100” Reform is confirmed for the whole of 2020 and until 31 December 2021; (ii) the financial subsidy that leads to retirement is renewed for those categories of workers who need greater protection, the so-called “Social APE” and (iii) the so-called “Women’s Option“, which provides for the possibility for public and private workers to anticipate their retirement also for 2020, is extended.
