On 28 December 2023, Italy joined the European Framework Agreement called “Framework Agreement on the application of Article 16 (1) of Regulation (EC) No. 883/2004 in cases of habitual cross-border Telework”.  

Article 1 of the Framework Agreement defines “cross-border telework” as an activity that a worker carries out remotely in one or more Member States through the use of information technologies. 

The agreement provides that cross-border teleworkers may be subject to the social security system of the Member State of the employer’s registered office, provided that the work carried out under the “teleworking” regime in the State of residence is less than 50% of the total working time. 

This regime applies only if the worker’s State of residence and the one in which the employer has its registered office are both signatories to the Framework Agreement. Therefore, if those States have not signed such a Framework Agreement, the provisions of Article 13 et seq. of Regulation (EC) No. 883/2004, which provide for the application of the social security system of the Member State of residence if the worker carries out a substantial part of his or her activity in that State, apply. 

Where the conditions set out in the Framework Agreement are met, to derogate from the general provisions established at European level regarding the identification of the applicable legislation, it will be necessary to initiate a special request procedure under Article 18 of Regulation (EC) No. 987/2009. This procedure must be undertaken before the competent authority of the Member State in which the employed worker asks to apply the legislation which, in the case of Italy, is the Italian National Social Security Entity (Istituto nazionale della previdenza sociale ‘INPS’). 

Finally, it should be noted that requests submitted up to 30 June 2024 may retroactively cover a period of up to twelve months prior to that of the request. 

The Spanish Council of Ministers has approved a Royal Decree on remote working “Real Decreto-Ley 28/2020.” These are a set of provisions aimed at balancing employee and employer needs. It was published in the Boe – the equivalent of the Italian Official Gazette, on 23 September 2020.

There are eight points of interest within the Spanish Royal Decree:

1. the law’s scope of application. The Royal Decree explains the law’s scope of application and defines remote working: “remote working is considered regular if it is performed, within a reference period of three months, for at least 30 per cent of the working time, or a percentage proportionally equivalent based on the employment contract’s duration”;

2. the agreement: the decision to work remotely must be the result of an agreement between the employer and employee. This must be formalised in writing, registered with the relevant offices and delivered to the workers’ representatives;

3. the collective bargaining role: the role of collective bargaining is strengthened and must regulate any relevant issues. These issues include the right to disconnection, identification of positions and functions that can be carried out remotely, conditions to access and perform the service through this organisation system, distance working maximum duration, etc.

Read the full version of the article in Italian published by Il Quotidiano del Lavoro – Il Sole 24 Ore.

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.