On 7 December, the social partners and the Ministry of Labour and Social Policies signed the “National Protocol on remote working” (the “Protocol“).
As stated in the introduction, the protocol“establishes the reference framework for the definition of remote working by expressing guidelines for national, corporate and local collective bargaining in compliance with the legal framework set out in Law 22 May 2017, no. 81 and existing collective agreements, entrusting collective bargaining with what is necessary to implement the different and specific production frameworks.”
The main guidelines
Firstly, the Protocol clarifies that applying remote working must be voluntary and must be subject to signing an individual agreement without prejudice to the right of withdrawal. Any refusal by the worker to perform remote working does not constitute dismissal for just cause or justified reason, nor is it relevant from a disciplinary point of view.
The individual agreement must regulate aspects such as
Remote working does not require a precise working time but independence within the pre-established objectives and respect for the organisation and assigned tasks to ensure company operability and interconnection between the various business departments. This independence was found in the choice of workplace. However, the Protocol clarifies: “the service performance […] can be divided into time slots, identifying […] the disconnection time in which the worker does not work.” ” technical and organisational measures must guarantee the disconnection period.”
The Protocol points out that, as a rule, the employer provides the technological and IT equipment necessary for remote working. If it is agreed to use personal tools, it is necessary to establish adequate security criteria and requirements.
The Protocol requires the worker to process personal data accessed for professional purposes under employer instructions. To ensure compliance with personal data protection legislation and confidentiality, the employer must:
During remote working, the employer must ensure health and safety by providing the worker, and RLS (Workers’ Safety Representative) written information describing the general and specific risks associated with remote working. The Protocol states that the worker continues to be entitled to protection against accidents at work and occupational diseases, risks related to work performed outside the company premises, even if this is remote working.
The employer must (i) provide training courses aimed at increasing specific technical, organisational and digital skills for the effective and safe use of the work tools provided and (ii) guarantee compulsory training on the protection of workers’ health and safety and personal data.
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The Protocol provides guidelines as a reference framework for future national, corporate or local collective bargaining, without prejudice to existing and individual agreements.
Other related insights:
The Court of Cassation, in ruling no. 7221 of 15 March 2021, confirmed the legal principle according to which the Company’s supplementary contract, and the right recognised to the employee by company practice, does not survive the change in collective bargaining following the company transfer.
A worker employed by a company moved to another company through a contract assignment and a business transfer to a new employer (the transferee Company).
The first two companies had awarded their employees, on their 30th year of service, a gold watch which, however, was not paid by the transferee Company to the employee in question.
The employee took legal action to request payment of € 2,500 (equal to the purchase value of the gold watch) plus revaluation and interest of € 1,272.75, plus legal revaluation for the severance indemnity fund (to include the sums paid for seniority bonuses, compensation for holidays falling on Sundays, individual leave not taken and overtime).
The Court upheld the employee’s appeal and ordered the transferee company to pay the amount requested. The latter Company appealed against the Court of first instance ruling.
The Court, which dealt only with the payment order, rejected the appeal and confirmed that the transferee Company had maintained the Company’s practice of handing out watches to employees on reaching their 30th year of service.
According to the Court, although this practice (since it is an independent source of the individual contract and not a supplementary and more favourable clause) is not kept during the company transfer, as a result of the replacement of the collective bargaining agreement applied by the transferee (even if more unfavourable), the transferee company recognised it under a supplementary company agreement.
The Transferee Company appealed to the Supreme Court, claiming that the local Court’s interpretation of the supplementary agreement was incorrect.
The Court of Cassation reiterated the legal principle according to which, if there is a company transfer, the transferee supplementary bargaining applies and not that of the transferor company. The right under company practice (which is comparable to the supplementary contract in terms of effectiveness in individual relationships, as a source of a unilateral collective obligation for the employer, replacing the contractual and collective clauses in force) does not survive the change in collective bargaining following the company transfer (even if the bargaining applied by the transferee company is more unfavourable), so that it is no longer applicable at the transferee company which has its own supplementary bargaining.
Secondly, the Court reiterates the general principle according to which the conflict between collective agreements, such as the company contract, must be resolved based on the effective will of the parties operating in the area closest to the regulated interests, to be deduced through the coordination of the various collective bargaining provisions, having equal dignity and binding force. Regional agreements may follow the autonomous negotiation principle under art. 1322 of the Civil Code, extend the effectiveness of national agreements and derogate from them including in pejus, without prejudice to safeguarding rights that have already been definitively acquired by workers. Such rights may not be treated less favourably under subsequent legislation at the same or different levels.
In the Court of Cassation’s opinion, the employee accrued the right to the monetary equivalent of the watch as a seniority and loyalty bonus as a result of the transferring Company’s existing practice and the (subsequent) company supplementary bargaining, which had to be acknowledged as a recognition of the pre-existing company practice.
Other related insights:
The Ministry of Labour and Social Policies, by decree dated 12 September, defined the criteria and methods of use of financial resources assigned to private sector employers that may have established in their company collective bargaining agreements provisions for balancing the professional and private life of employees. This is a tax relief issued to implement article 25 of Legislative Decree No. 80/2015, which entrusts to the parties a useful tool to give value to the role of second level bargaining. In particular, the decree establishes payment of the benefit to employers that (i) have signed and filed corporate collective bargaining agreements (also in the case of territory-specific collective bargaining agreements) including measures for balancing work and private life that are innovative and ameliorative respect to what is already established by the national collective bargaining agreements or by the regulations in force or (ii) that established in their corporate collective bargaining agreements, the extension or integration of measures already included in previous corporate collective bargaining agreements. The measures must concern parenthood, forms and methods of organisational flexibility and corporate welfare interventions. In order to be eligible for the tax relief, the related application must be submitted electronically to INPS by 15 November for agreements filed by 31 October 2017, for the resources allocated for the current year, and by 15 November 2018 for agreements filed by 31 August 2018, for the resources allocated for 2018.
