Remote work: silence does not apply to administrative authorisation – consent

The National Council of Labour Consultants has submitted an application to the Ministry of Labour for its opinion on the configurability of the silence of consent with regard to the request for authorization to install audiovisual equipment and instruments pursuant to art. 4 of Law 300/1970. This considering the provisions of Law 241/1990 whereby the silence of the competent administration is equivalent to granting the application.

In particular, the Ministry was asked whether the silence of the administrative body before which the case was brought, in relation to the application for authorisation, could be regarded as tacit consent in this regard, whereby the company could proceed with the installation of the equipment/tools requested.

The conclusion of the Ministry

Article 4 of the Workers’ Statute aims to reconcile employer needs with the protection of the dignity and confidentiality of the worker at the workplace. Specifically, “we want to avoid that the work activity is improperly and unjustifiably characterized by continuous and rigid control, such as to eliminate any profile of autonomy and confidentiality in the performance of work.

The provision in question pertains, first of all, to an agreement between the employer and the trade union representatives as to the possibility of installing equipment / tools that allow remote work. In the absence of an agreement, the installation is subject to authorisation on the part of the Labour Inspectorate.

The Guarantor for the protection of personal data has also intervened several times to regulate this case, in consideration of the close interaction that links art. 4 of the Workers’ Statute to the regulations on the issue of privacy, often referred to in the authorizing measures.

Therefore, according to the Ministry, the wording of Article 4, first paragraph, of Law 300/1970 “does not allow the installation and use of control systems without an express authorization, whether of a negotiating (trade union agreement) or administrative (the measure) nature“.

According to the Ministry, this interpretation falls in line with the jurisprudence whereby “the inequality in fact and, therefore, the indisputable and greater economic and social strength of the entrepreneur, compared to that of the worker, gives an account of the reason why the codetermination procedure is to be considered mandatory, as it can be replaced alternatively by the authorization of the territorial labour department” (acc. to Criminal no. 22148/2017), in continuity with a consolidated interpretative orientation on the subject (see Criminal no. 51897/2016; Civil Code no. 1490/1986)“.

In view of the foregoing, the institution of silent consent cannot be configured for procedures that can be activated by submitting an application pursuant to Article 4(1) of Law No 300/1970. An express order granting or rejecting the application must be issued.