The Court of Appeal, Penal Section, with sentence\n50919 of 17 December 2019, confirmed that the installation of\nvideo-surveillance systems, resulting in the remote control of workers’\nactivities, must be preceded by reaching a trade union agreement or, failing\nthat, by obtaining administrative authorisation. The consent of the workers\nconcerned is not sufficient. <\/p>\n\n\n\n
Facts of the case<\/strong><\/strong><\/p>\n\n\n\n The Court of Milan had ordered a contractor to pay a\nfine for breaching Articles 114 and 171 of Legislative Decree 196\/2003 and\nArticles 4, paragraph 1 and 38 of the Workers’ Statute. This was because the\nentrepreneur had installed 16 video surveillance systems within his company,\nwith the declared aim of controlling access to them and acting as a deterrent\nto criminal events, which, however, allowed for the remote control of\nemployees’ activities. The installation had taken place without prior union\nagreement or administrative authorisation.<\/p>\n\n\n\n On that matter, in fact, the Court had pointed out\nthat the entrepreneur had indeed asked the peripheral bodies of the Labour\nInspectorate territorially competent to issue the authorisation but, before\nobtaining it, the entrepreneur had installed the aforementioned systems.<\/p>\n\n\n\n Furthermore, according to the Court, the disclaimer\nissued in court, signed by all the employees and sent in advance by the\nentrepreneur to the Inspectorate, could not be applied, given that it:<\/p>\n\n\n\n The entrepreneur appealed against the judgement at\nfirst instance, arguing, inter alia<\/em>, that the consent given by the\nemployees should be understood as an element that would exclude the criminal\nrelevance of the disputed conduct.<\/p>\n\n\n\n The appeal in question was converted, in accordance with\nthe principle of favor impugnationis<\/em>,\ninto an appeal by cassation, given that it could not be appealed as only the\nfine had been imposed.<\/p>\n\n\n\n The\ndecision of the Court of Appeal<\/strong><\/strong><\/p>\n\n\n\n The Court of Appeal, in declaring the appeal filed by\nthe entrepreneur as inadmissible, firstly noted that the case in question is\ngoverned by Article 114 of Legislative Decree 196\/2003, which also followed the\nentry into force of Article 15 of Legislative Decree 101\/2018 (Decree adapting\nnational legislation to EU Regulation 2016\/679 on the protection of personal\ndata), provides for the following: “the\nbreach of the provisions set out in Article 4, paragraph 1, (…) of Law no.\n300 dated 20 May 1970 shall be punished with the sanctions set out in Article\n38 of the same law<\/em>“.<\/p>\n\n\n\n In the opinion of the Court of Appeal, “the circumstance (…) according to which\nthe visual recording system was installed in order to guarantee the safety of\nthe employees themselves, given that the purpose of guaranteeing occupational\nsafety is one of the factors which, in abstract terms, make it possible to\nactivate this type of system, notwithstanding, however, the implementation of\nthe subsequent forms of guarantee for the protection of workers provided for by\nthe aforementioned preceptive regulations<\/em>“.<\/p>\n\n\n\n Equally irrelevant, according to the Court of Appeal,\nis the circumstance that the entrepreneur had not personally had access to the\ncontent of the video recordings, given that the relevant system was managed by\na third party. This is because Article 4, paragraph 1, of the Workers’ Statute\nprohibits, in the absence of a prior trade union agreement or, in the absence\nof prior authorisation issued by the Labour Inspectorate, the installation of\nremote video surveillance equipment.<\/p>\n\n\n\n The Court of Appeal also underlined that Article 38 of the Workers’ Statute<\/strong> does\nnot protect “the<\/em> personal\ninterest of the individual worker nor the arithmetical sum of each of them, but\nit does safeguard the collective and super-individual\ninterests<\/strong>, although a possible interference between the injury of the legal\npositions of the trade union representatives and those of the individual\nworkers from time<\/em> to time cannot be <\/em>excluded”<\/em>. And the\nemployer’s conduct, which does not allow for discussion with trade union\nrepresentatives, causes objective damage to the collective interests of the\ntrade union representatives<\/strong>. The trade union representatives are, in fact,\n“responsible for<\/em><\/strong> ascertaining<\/strong>, given that they are\nholders ex lege of the relevant right, whether<\/strong> or <\/strong>not the<\/strong> a<\/strong>udio-visual equipment<\/strong> , from which the employer intends to make\nuse, has, on the one hand, the ability\nto infringe the dignity of workers for their potential finalisation to the\nremote control of the performance of the work activity and to verify, on the\nother hand, the effective compliance of said systems with the\ntechnical-productive or safety requirements so as to regulate, through\ncollective agreement, the terms and conditions of use and thus free the\nentrepreneur from the impediment to their installation<\/strong><\/em>“.<\/p>\n\n\n\n In this context, the Court of Appeal, citing a\nprecedent of its own, pointed out that the employer, if it installs\ninstallations without complying with the procedural guarantees provided for in\nArticle 4 of the Workers’ Statute, behaves in an anti-union manner, which can\nbe repressed with the special protection provided for by Article 28 of the\nWorkers’ Statute (see Court of Appeal, Labour Section, 16 September 1997, no.\n9211).<\/p>\n\n\n\n Furthermore, according to the Court of Appeal, the\nprocedural guarantees dictated by Article 4 of the Workers’ Statute are based\non the fact that workers can be configured as weak subjects of the employment\nrelationship. Otherwise, continued the Court of Appeal, “it<\/em> would suffice for the employer, in order to\ncircumvent the procedure imposed by law, to make each employee, at the time of\nhiring, sign a declaration by which he accepts the introduction of any control\ntechnology to obtain consent, whose free determination appears vitiated by the\nfear, in case of refusal to sign the declaration in question, that he will not\nbe hired”.<\/em><\/p>\n\n\n\n In conclusion, in the opinion of the Court of Appeal,\nthe consent or acquiescence that the worker may have given or has given does\nnot perform any exempting function, given that the protected collective\ninterest remains outside the theory of the consent of the person entitled. <\/p>\n","protected":false},"excerpt":{"rendered":" The Court of Appeal, Penal Section, with sentence 50919 of 17 December 2019, confirmed that the installation of video-surveillance systems, resulting in the remote control of workers’ activities, must be preceded by reaching a trade union agreement or, failing that, by obtaining administrative authorisation. The consent of the workers concerned is not sufficient. Facts of […]<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[167,177,190],"tags":[2421,2425,855],"class_list":{"0":"post-24207","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"hentry","6":"category-case-law","7":"category-insights","9":"tag-consenso","10":"tag-controllo-a-distanza","11":"tag-impianti-di-videosorveglianza-en"},"acf":[],"yoast_head":"\n