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:

• allows Drivers to view the list of deliveries to be made during the working day to customers of the client company;
• allows the employer of the Drivers and the client company to know, in real time, the correctness and timeliness of deliveries;
• monitors, in real time, the remaining deliveries/receipts during the day;
• acquires real and clear evidence in the event of a dispute with the client.

Again, according to the INL, the application is also functional to the need for “occupational safety“, given that it:

• facilitates the finding of the courier in case of emergency and that
• drivers can inform their employer of any faults in the vehicle and/or ask for help in the event of accident or illness.

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:

• the company must provide, pursuant to Article 4, paragraph 3, of the Workers’ Statute, an appropriate written information to the Drivers regarding the operating procedures, the performance of checks and the purposes justifying the relative authorisation;
• the installation and use of the application, as well as the processing, storage and protection of data and information gathered must be carried out in compliance with the provisions on the protection of personal data;
• access to the data gathered by the application, allowed only for the purposes represented above, by the persons in charge, must be traced by means of special functionalities that  for knowledge of which data is accessed and the related reason; “access logs” must be kept for a reasonable period;

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:

• was formed after the actual occurrence of the conduct imputed to the entrepreneur himself and the challenge of its existence and,
• in any event, in the light of the most recent guidelines in the case-law on legality, it could not act as a ‘substitute either for the existence of a trade union agreement or the authorisation issued by the public body‘.

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.

The National Labour Inspectorate, with Circular Letter no. 1881 of 25 February 2019, has clarified aspects concerning the application of Article 4, Workers’ Statute, in the event of occurrence – following changes in the company ownership structure (mergers, transfers, incorporations, leases of company or business lines) – of a change of ownership of a company that has installed video surveillance systems or other systems allowing remote monitoring of work activities.

More specifically, the Inspectorate was asked if in these cases it is necessary to repeat the procedure with the trade unions or the authorization procedures or if instead it is enough that the occurred change of ownership be formally notified to the competent office of the Inspectorate.

Reference Regulations

Article 4 of the Workers’ Statute, which was amended in 2015, sets forth (par 1) that the audio-visual systems and other tools allowing remote control of workers’ activities, can be used exclusively for:

• organizational and production purposes;
• safety at work;
• protection of company assets.

Moreover, even if the above conditions are met, it is necessary that:

• an agreement is previously signed with the trade unions or, failing this,
• use is previously authorized by the local office of the Inspectorate or, in the alternative – in the event of enterprises with production units located in the jurisdiction of several local offices of the Inspectorate – by its head office.

The indications of the Inspectorate

The Inspectorate clarified that in the event of a mere “take-over” of a company’s facilities previously equipped with the aforementioned tools/systems, it not necessary to “replicate” the procedures (trade union agreement / administrative authorization) set forth in Article 4 of the Workers’ Statute. This is so provided that changes have not occurred with regard to (i) the requirements of legitimization (production and organizational needs, safety at work and protection of company assets) and (ii) the operational arrangements of the systems (framing, angles of coverage, etc.).

However, according to the Inspectorate, it is necessary that the company taking over the facilities:

• communicates the number of the authorization to the same office that had originally issued it, and
• issues a declaration attesting that, following the change of ownership, the requirements that legitimized its issue, or the way the monitoring device/system is used, have not changed.

In any case, the Inspectorate has clarified that any type of use of the devices other than the authorized uses is forbidden, under penalty of the obligation to repeat the described authorization procedures, just like in the event of a change of the requirements of legitimization.

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