A new remote working regulation applies from today (Economy magazine, 1 September, 2022 – Vittorio De Luca)

Categories: DLP Insights, Interviews, News, Interviews | Tag: Lavoro Agile, Remote Working

01 Sep 2022

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 SMART 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 smart 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 SMART 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 smart worker 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 smart workers. Article 20, paragraph 1) of Law 81/2017 establishes that a smart 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 smart 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 smart 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. 

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