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Quorum Legal Announces the Publication of the Book “Smart Working”
By Quorum Legal

Quorum Legal announced the publication in Italy of a book on a labour law relevant both in Italy and abroad entitled “Smart Working” written by partners and senior associates of their Labour Department.

The book alternates between a theoretical and pragmatic approach and uses the daily experiences of colleagues in consulting companies, beginning with a description of the regulatory sources and, specifically, Law no. 81/2017, in which the willingness and independence of the parties stand out. This is a “light” law that has regulated a phenomenon that had already gained a hold in medium/large-sized companies and defines a framework of rules for work performed outside company premises, without time constraints.

The book describes the beginning and end of employment relationships, the peculiarities of the emergency discipline due to the COVID-19 virus, the profile of technological innovation, the restructuring of working times and the economic treatment.

The book then explains how the work is articulated, the issues regarding safety in the workplace, trade union prerogatives and checking work performance, and concludes with an illustration of the rules in the Public Administration. The last two sections, namely the vision of human resources and the concrete testimonies of top executives of important Italian and multinational companies, are particularly relevant.

When the publisher suggested writing a book on smart working, the thoughts of the authors/colleagues immediately went back to when, at the end of the 80s, under the “umbrella” of “flexibility”, people were already looking for a different way of working that would favour the achievement of objectives and the reconciliation of professional and personal life. There is no doubt that until the early 70s, with a few exceptions, work was characterised by the proximity between the employer (and its representatives) and the employee. In fact, the concept of a working relationship was centred on closeness, i.e., favouring the visual element and the physical perception of the performance of the activity. These aspects are still present today, especially in businesses with certain operational peculiarities and, for certain specific activities. With the evolution of technology, a different way of working has gradually asserted itself, and information technology has slowly become an increasingly indispensable element.

In the wake of this development, teleworking came into the limelight in the late 80s and early 90s. Its advent was hailed, probably too enthusiastically, as “the job of the future” and this was probably also due to the need to handle mobility in large urban centres better and to reduce the running costs of company premises. In doing so, the overseas reality where, for example, many employees were engaged in “home working”, was taken as a paradigm of reference. However, it is well known that a rule can be rejected if it fits into regulatory and social systems that are quite different from each other. Nevertheless, even in Italy, there was no lack of important evidence of companies that resorted to telework, particularly those that were technology-oriented.

The fact remains that telework in Italy has never had the success that had been predicted at the outset and the reasons for this vary and are not all connected with the law. Nor, if you look closely, is it only due to the delay in digitalisation in certain sectors. In fact, although many companies have been technologically ready for a long time, the process of computer literacy, especially among the younger generation of employees, is much further along than is generally recognised. Rather, without straying into other disciplines, it is undeniable that business is also a social formation in which a man’s personality develops through contact, relationships, exchanges, dialectics and, why not, confrontation. Similarly, it is undeniable that by carrying out the work remotely, (“remotising”), no pun intended, certain risks are far from remote.

Consider the risk of becoming anti-social and the shift from community to self-absorption, the potential penalisation of women’s work, workaholic stress, the blurring of the lines between work and private life, in many cases due to the lack of segmentation between the personal sphere and working hours. After all, bearing in mind that these risks can also reappear now and, in some cases, have already done so, everyone knows what happened in 2020 with the pandemic and the subsequent unintentional flourishing of smart working. Almost, therefore, to apply the principle of “coactus tamen voluit” to allow all or part of certain activities to continue.

Indeed, commonly held statistics show how the scope of smart working (and, perhaps, confidence in it) was restricted before the pandemic. In this regard, caution should be exercised in the face of theories based on “pan-remotising”, i.e., those opinions, albeit legitimate and respectable, that identify agile working as the key to the future. Probably, it is not surprising that some agreements provide for a limit on the number of agile working days in a month.
Firstly because, it is undoubtedly true that agile working cannot be applied to all work, i.e., its application is theoretically possible only for certain work activities and not for all.

Furthermore, it cannot be denied that smart working, as it has been experienced and applied from March 2020 until today, has been no different to home working, almost as a means competing in the protection against the Covid-19 virus, with methods which are almost exclusively home-based to ensure business continuity. This is the reason why we should almost be talking about “Covid working”.

We cannot ignore the lively debate underway on whether employees are obliged to have the Covid vaccine at the employer’s request and on the consequences of a possible refusal which, where expulsion of the employee is not considered feasible, can open the way to further use of agile work for the person exercising this right of resistance and as long as the tasks are compatible with this type of performance.

Nor can we disregard a risk which, with a neologism, has recently been defined by some as “presenteeism”.
In other words, always being on call and never showing that you are too sick, tired, or stressed to work, thus perceiving the fact of being on holiday or sick leave as a privilege or a gracious concession rather than a right when the underlying conditions are met. This also begs the difficult question of the right to disconnect.

Certainly, it cannot be denied that the experience gained will be a fundamental driver for smart working, therefore it is necessary to transform a problem into an opportunity. In other words, we need to take note of the fact that there may be a different way of working, with objectives, which can be a lever for development.

It is no coincidence that several Italian companies, which had already gained experience, albeit marginal, after the summer of 2020, issued rules or entered into trade union agreements governing agile work in a complete, widespread, and stable manner. Smart working should, therefore, not be considered “the way”, but rather “a way” of working – in other words, as a tool to be used, depending on the context and the given tasks. However, it would be misleading to think that these aspects are sufficient, just as it would be short-sighted to anchor the recognition to qualify for smart working solely to the job-related element. This is because, at the same time, it is necessary to carry out a review of the organisational structures and working methods. For this purpose, it is necessary to gradually break down the strictly hierarchical profile, rewrite the rules of the game and focus on achieving objectives and the principle of self-responsibility.

In this way, a different managerial attitude will certainly be decisive, and it will be important for the other players in the life of a company, the trade unions, to share a different approach to overcome resistance lined to old patterns. It is therefore up to the company and trade unions to play a fundamental role, i.e., to create support, clear rules, and real flexibility, but, above all, not to forget that, while respecting fundamental rights and guarantees, the worst mistake would be, as it were, to tie a horse (the law on agile work) which was created to gallop and not to be harnessed, to a fence. Therefore, without turning protection into tutiorism, it is important not to rush haphazardly on current legislation. Otherwise, there is the risk of freezing the flexibility that characterises the law on agile work.

Certainly, time, the end of the state of emergency and the return to normality will tell us if, and to what extent, post-emergency agile work will be able to take its place at the table of the Italian work world and how.

In the meantime, there are certainly many aspects that need to be regulated, and many patches of light and shade have been seen in this period. Indeed, never as in the case of agile work do the words of those who have defined labour law as “frontier law and the frontier of law” come to mind.

With this in mind, in this volume, the  Labour Department of Quorum Legal have prudently attempted to provide answers to the various questions that this period has largely left unanswered.

The authors will donate their fees to charity, given the difficult times that Italy is going through.

View the book’s table of contents (in Italian).

If you have any questions or wish to acquire the book, contact Quorum Legal at [email protected].