On 29 December 2022, Italian Law No 197/2022, entitled ‘State budget for the financial year 2023 and multi-year budget for the three-year period 2023-2025’ (‘Bilancio di previsione dello Stato per l’anno finanziario 2023 e bilancio pluriennale per il triennio 2023-2025’ – hereinafter ‘Budget Law’) was published in the Italian Official Gazette.
The above-mentioned legislation, among the various measures, introduced some contribution exemptions for the year 2023. In particular, employers who in 2023 hire workers under the age of 36 under a permanent employment contract will be able to benefit from total exemption from social security contributions up to a maximum amount of EUR 8,000 for a maximum period of 36 months. This exemption is also granted for fixed-term contracts which are converted into permanent contracts in the same year. The relief in question is granted (and this is new) also in the case of employment of persons who receive ‘citizenship income’ (‘reddito di cittadinanza’).
In addition, the above-mentioned contribution benefit is guaranteed if the permanent contract (or the contract that is converted into a permanent contract) concerns female workers who, regardless of age, have been (i) unemployed for at least 24 months or (ii) unemployed for at least six months if they are resident in ‘disadvantaged’ (‘svantaggiate’) areas.
The reliefs introduced do not only concern social security contributions but also those relating to tax. On this point, in fact, the Budget Law reduces the tax rate on ‘productivity bonuses’ (‘premi di produttività’) which goes from 10% to 5% up to a maximum amount of EUR 3,000. The tax relief therefore applies to performance bonuses of variable amounts whose payment is linked to increases in productivity, profitability, quality, efficiency and innovation, as defined in the context of a corporate or territorial collective agreement. This relief applies to those who in the previous year have earned employee income not exceeding EUR 80,000.
Finally, the Budget Law extended until 31 March 2023 the right for ‘vulnerable’ (‘fragili’) workers to work through remote working. For the other categories of workers, on the other hand, remote working is permitted only after signing an individual agreement between the employer and the employee under Articles 18 et seq. of Italian Law No 81 of 22 May 2017.
Law no. 142, of 21 September 2022, converting decree law no. 115 of 9 August 2022, (“Aiuti-bis” decree) on “Urgent measures on energy, water emergency, social and industrial policies” was published in the Official Gazette no. 221 of 21 September 2022.
The law introduced important changes on remote working. The use of simplified remote working, i.e., without individual agreements, was extended until next 31 December.
The right to perform remote working for parents with children up to 14 years of age and vulnerable workers was extended until the end of the year.
Other labour-related provisions included: (i) the value increase for goods and services that do not form employment income under Art. 51, paragraph 3, TUIR, reached € 600 and was confirmed for 2022. Fringe benefits include the sums paid or reimbursed to employees for the payment of domestic utilities for the integrated water service, electricity and natural gas; (ii) the increase by 1.2 percentage points, for the period from 1 July 2022 to 31 December 2022, the 0.8% exemption on the employee’s share of social security contributions for disability, old age and survivors, introduced by Art. 1, paragraph 121, of the Budget Law 2022 (Law no. 234/2021); (iii) the extension of the number of recipients of the € 200 one-off allowance, introduced by Articles 31 and 32, Decree Law no. 50/2022.
Other related insights:
Economy asked some questions to De Luca & Partners Managing Partner Vittorio De Luca about remote working.
From today 1 September 2022, remote working, cannot be carried out without a precise individual agreement with the worker. Economy asked some questions to De Luca & Partners Managing Partner Vittorio De Luca.
WHEN WILL EMPLOYERS WITH REMOTE WORKERS NEED TO HAVE THE REQUIRED DOCUMENTATION OR INDIVIDUAL AGREEMENTS?
It has been impossible since 31 August 2022 to use remote working without a valid individual agreement. But from 1 September 2022, remote working will be permitted only by entering into specific worker and employee agreements, under the “ordinary” regulations of Articles 18 et seq. of Law 81/2017.
The simplified reporting procedure to the Ministry of Labour becomes standard.
Article 41-bis of Decree-Law 73/2022, converted by Law 122/2022, states that, as of 1 September, employers can continue to report remote workers’ data electronically to the Ministry of Labour and Social Policies using the appropriate portal without attaching the agreements signed with their employees, as originally provided for by Law 81/2017.
The Ministry of Labour in its note released last Friday stated that companies must report within five days from the signing of the individual agreement. However, when the new methods are first applied, the reporting obligation can be fulfilled by 1 November 2022.
WHAT ARE THE CONSEQUENCES FOR EMPLOYERS IF A REMOTE WORKER HAS AN ACCIDENT BUT HAS NOT SIGNED A COMPLIANT AGREEMENT?
Without prejudice to the mandatory agreement between employer and worker, applicable legislation allows INAIL insurance coverage for accidents occurring during the performance of remote working or for “in progress accidents if caused by a risk connected with work performance.” The employer must adopt the necessary measures to ensure the protection and performance of remote working in safe conditions. The legislation requires the employer to provide the worker with written information on any risks associated with the service performance, at least annually. This must be accompanied by remote training.
Carrying out work outside the company premises, or the usual place of work, creates the conditions for different and additional risks to the health and safety of the employee who must be adequately informed and trained. The worker must cooperate with the preventive measures prepared by the employer to deal with these risks. If the worker receives inadequate training and suffers an accident at work because of this deficiency, the employer is liable for tort, civil compensation, and is criminal liable in more serious cases (e.g., negligent injury or manslaughter),
Without prejudice to what is provided for insurance obligations, as of 1 September 2022, remote working without the necessary individual agreement exposes employers to the risks of violating remote working regulations.
WILL THE NEW REGULATIONS AFFECT WELFARE MEASURES SUCH AS MEAL VOUCHERS?
The new regulations do not include any welfare measures. During the pandemic there was a debate over it being legitimate to revoke meal vouchers from remote workers. Article 20, paragraph 1) of Law 81/2017 establishes that a remote worker is entitled to a payment and contract terms that are not less than that applied to workers who perform the same tasks on premises.
However, case law established that meal vouchers cannot be qualified as “ordinary” remuneration. Their nature must be identified as occasional welfare benefits linked to the employment relationship, and not strictly part of remuneration (Court of Cassation, Order no. 16135 of 28 July 2020). In principle, it would be legitimate for the employer to grant meal vouchers only to on-site workers, excluding remote workers. It would be necessary to check what is stated in the employment contract, to avoid breaching commitments that the employer made when hiring.
ARE YOUR CLIENT COMPANIES PREPARED FOR THIS TRANSITION?
We believe that a significant number of companies expected a further extension. August 2022 is usually an extremely active month for the legislator. For example, the Transparency Decree came into force in August, and this places pressure on company human resources departments. Then there is the new parental leave (Decree).
WERE INDIVIDUAL AGREEMENTS ALREADY IN PLACE OR WERE THEY RECENTLY DEFINED?
As we have been saying since March 2020, the individual agreement is an opportunity rather than an obligation. When workers work remotely, it is necessary to regulate performance to avoid losing control. A remote work project involves different skills and offices within the company (HR for work organisation and management, IT for the IT structure and company equipment necessary to carry out work outside the office, legal expertise in the field of privacy compliance, H&S, etc.).
Surely, the new obligations that come into force on 1 September cannot be implemented in time if companies did not start weeks ago Organisations which started making changes, will only need to worry about adapting remote working policies and individual agreements to meet evolving needs and any critical issues.
ARE THERE PRODUCTION SECTORS THAT ARE MORE ADVANCED THAN OTHERS IN REMOTE WORKING?
We worked with companies from the many different sectors (food and beverage, aviation, companies operating in the production of furniture and interior design and the energy sector). We cannot say that there are production sectors that are more advanced than others, but there are companies (albeit from different sectors) that have implemented structured working models.
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.
◊◊◊◊
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:
Remote working has exponentially increased due to the Covid-19 health emergency that started in 2020.
The advantages and potential of this work method, forcibly experienced at a mass level during the pandemic, oriented many companies towards a new “hybrid” organisation that combines in-person and remote work.
Many companies have applied a more flexible organisation that allows workers to choose when to work in-person or remotely, making their space and time boundaries more fluid.
Considering the complex emergent regulatory framework, proper remote working conduct in the post-pandemic era becomes crucial. It needs to be understood that “remote” working does not mean working “from home.” Remote working, as defined by Chapter II of Law no. 81/2017 is a specific and flexible way of organising employment, independent of the workplace and time, and established by agreement between the parties. Under Art. 18, paragraph 1 of the above law, the employee works partly inside the company’s premises and partly outside, without a fixed location.
Remote working requires a fixed term or open-ended agreement between the employer and employee to regulate essential aspects, such as: (i) the forms of exercise of the employer’s executive and control powers; (ii) the worker’s rest time and the technical and organisational measures necessary to ensure the worker’s right to disconnection from the technological work tools; (iii) any conduct that may be sanctioned at a disciplinary level and, (iv) any right to lifelong learning.
Last year’s emergency legislation has led to a partial derogation from the ordinary rules by introducing a “simplified” method to access remote working. Under this method, remote working can be implemented without an individual worker agreement by sending an electronic communication to the Ministry of Labour and Social Policy with the workers’ names and remote working termination date.
The regulations include obligations to provide information on occupational health and safety risks under art. 22 of Law no. 81/2017 which may be fulfilled electronically. Currently, private employers can use simplified remote working until 31 December 2021 under Law no. 87/2021 converting into law Decree-Law no. 52/2021 ( Reopening Decree).
Please note that the “emergency” remote working regulations have led to a derogation – which is close to expiry. This derogation applies to the agreement between the parties, and does mean losing the need to regulate and guarantee a series of aspects that are naturally governed in the agreement. Specifically these include “work performance”, “forms of exercise of the employer’s executive power, “tools used by the worker”; “worker’s rest time”; “technical and organisational measures necessary to ensure the worker’s disconnection from the work technological tools”; “right to lifelong learning”; “exercise of the employer’s control power”; “conduct connected with the work performance…, which give rise to the application of disciplinary sanctions” (art. 18, 19, 20 and 21 L no. 81/2017).
Continue reading the full version published on Il Quotidiano del Lavoro of Il Sole 24 Ore.
