Remote controls on the employment relationship – (Il Commerci@lista, Monografie Lavoro e Previdenza – Vittorio De Luca, Elena Cannone, Giulia Galli, Luciano Vella, Lucio Portaro)”
- Article 4 of the Workers’ Statute
– Article 4 of the Workers’ Statute before the Jobs Act After more than forty years, the regulations established by article 4 of Law No. 300 dated 20 May 1970 of the Workers’ Statute on the topic of remote controls have been amended by article 23 of Law Decree No. 151 dated 14 September 2015, “Provisions for rationalisation and simplification of procedures and fulfilments to be met by citizens and companies and other provisions on the topic of employment relationship and equal opportunities, implementing the Law No. 183 dated 10 December 2014”, as part of the major reform known as the “Jobs Act”.
The far-sighted lawmaker of 1970, with article 4, wanted to regulate a production scenario where the tools from which it was possible to monitor the work activity were devices “external” to the provision of work, whose installation, however, was necessary to meet specific needs (organisational and production reasons as well as work safety reasons). In order to protect worker’s dignity, therefore, a full prohibition was introduced to install tools that had as their exclusive goal to monitor the work activity, allowing as an exception in particular circumstances, the use of tools and devices to handle specific organisational and productive needs, that is work safety needs, only upon receipt of a specific authorisation by the union representatives or Labour Inspectorate.
However, over the years, application difficulties started to emerge regarding the aforementioned provisions, when the remote controls of the work activity had become possible by querying the information recorded by the devices entrusted to the workers for the performance of their work.
The new technologies went beyond the conceptual distinction, detailed in the previous article 4, between a tool destined to controls and work tool: the current technology tools (computers, smartphones, tablets etc.) represent in the current work organisation system “standard” tools to perform the work, which at the same time allow constant and analytical monitoring over the worker’s activity.
Technological evolution, therefore, made necessary to adapt said regulations to the technological reality of the businesses and introduce a distinction between the two different aspects. On the one hand, the regulation of the conditions for the installation of the equipment from which the control of the activity can take place; on the other hand, the possibility to monitor the tool to obtain the information related to the work performed.
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With its judgement No. 20761 dated 17 August 2018, the Court of Cassation, Labour Division, returned to rule on dismissal for exceeding the sickness absence days, confirming its opinion on potential formal faults that may affect its validity. More specifically– among the reasons for the appeal– the employee claimed the faulty application of the regulations in force since the employer had failed to inform the employee of the approaching expiry date of the maximum sickness absence days and this failure hindered the possibility to exercise the right to request a period of unpaid leave after this term. The Court of Cassation, consistently with its own orientation on the matter, confirmed the lawfulness of the dismissal, clarifying that there is no obligation from the employer’s part to notify the employee of the imminent expiry of the maximum sickness absence days, stating once again that such a burden would not exist extensively, not even on the basis of the principles of correctness and good faith. In fact, the Court noted how such notification “would be used in truth to allow the employee to implement certain initiatives such as request for paid vacation or leave, essentially by-passing the verification of its suitability to carry out said obligation›.
Read here the full version of the article published in Il Quotidiano del Lavoro of Il Sole 24 Ore.