The watchword of the technological revolution is the disintermediation of relationships, spaces and times, because thanks to the technological revolution, everyone is able to work in the absence of a relationship with their hierarchical superior or in the absence of relations with colleagues in the company. , deciding spaces and times of its activity. In this sense, the categories of subordinate employment cease to exist, as the lawyer points out. Labor lawyer Ciro Cafiero.
In this context, the legislator took note of the changes brought about by the technological revolution and proceeded with bill no. 2233 – A, approved by the Senate on 4 November 2016, the result of extensive processing, especially by collective bargaining: it was the unions that first traced the lines of this new type of work, the so-called smartworking or agile work.
The approved bill, even if it is an important step towards new forms of work, still suffers from the constraints, in some ways, of subordination.
This element is denoted from the very definition of smart working in art.15: “modality of execution of the employment relationship established by agreement between the parties, also with forms of organization by phases, cycles and objectives and without precise time constraints and place of work. “And again, specifies the provision:” the work is performed, partly inside company premises and partly outside without a fixed position, within the maximum time limits only of daily and weekly work, deriving from the law and collective bargaining “.
From this article we note that subordination is recalled, as a legal framework within which smartworking is written, but above all the categories of subordination such as working time limits are recalled, and this is where problems arise: in fact, some company agreements already they clashed with these categories of agile work, because they failed to reconcile it with the categories of subordination. Thus, for example, some collective agreements have removed the right of workers to have their permits counted or to take advantage of overtime, precisely because it is not compatible with a form such as that of agile work.
The station As for the workspace, the bill aimed to identify one and only one: the fixed position outside the company premises. In this sense, the smartworker is the one who decides in which workplace to perform his performance, therefore not only outside the company, but also on vacation, during journeys and more generally where he prefers. Right to disconnect The worker has the right to technological disconnection. It is not clear, however, how this right is made effective. Moreover, the doubt arises that the worker will really give up processing an overtime request from his employer. The trade unions and employers will therefore have the task of declining the contents of this right in consideration of the specificities of each individual production context. Accident insurance Article 20 extends insurance coverage for accidents at work to the agile worker and therefore also for those on the way but, in the latter case, limited to the journey between the place of residence and the one chosen for the job. The provision does not answer any questions. It is not clear, for example, what happens to the “agile” worker who is the victim of an accident during a trip for leisure purposes or, more simply, the journey to the supermarket and who in his employment contract has agreed to carry out activities work in travel, ordinary (like those for shopping) and extraordinary (like those for a trip), and not already in a chosen place. On these premises, it seems appropriate to correct the provision, according to the lawyer. Cafiero. Economic treatment of the agile worker Article 17, as a non-discrimination clause, establishes that the agile worker, as an employee, is due the same economic treatment guaranteed to him. Here too the bill is heavily affected by subordination: the treatment of the smartworker must be different from that of the employee, because he works in contact with a specific production context consisting of machines and therefore the same remuneration may be affected by these elements of strong specificity and will have to it is above all the company trade unions that declines this interaction, which is hopefully virtuous, between machines and workers.
Job security
Article 19 places the employer on the safety obligation, which could translate into a decalogue of safety measures that the employer is required to deliver to the smartworker. The decalogue, however, does not reach the ultimate goal of corporate security, given that he cannot know what risks the agile worker may incur, not knowing what interaction the worker, outside the company, can find with the machine, with the their mobile device they work with.
Collective bargaining
Through the deletion of Article 20, the legislator has enabled collective bargaining in smart-working matters for all unions and not, as originally envisaged, only those “comparatively more representative”. This is a significant act of trust in favor of the triple unions which, therefore, in turn, are called to an act of responsibility to avoid the proliferation of collective regulations on uneven and / or unbalanced agile work in favor of one or on the other side of the employment relationship. In the bill, however, there is no regulation of the relationship between individual bargaining, enabled as seen to regulate aspects of agile work, and collective bargaining.The union has the possibility of identifying smartworking among the tools of reconciliation between private and working life seen that it is a goal that thanks to smart working becomes possible.
Tax incentives Tax and social security incentives are recognized to the company that uses agile work. The provision, as it is formulated, seems aimed at avoiding the risk that agile work remains subject to tax and social security contributions to a discipline other than that applied to subordinate work tout court. It finds justification in the legislative qualification of agile work as a simple way of performing subordinate work and not as an autonomous type of employment relationship which, as already said, would be better suited to it. Given this, the challenge on agile work is played precisely on the tax and social security level or in the identification of tax and social security measures that can determine its success. In this perspective, it does not seem sufficient to consider the remuneration of the “agile” worker simply for productivity and therefore subject it to the flat-rate tax of 10% within the maximum limit of 2,500.00 euros. Rather, measures such as the entire tax exemption and decontribution of certain portions of agile work remuneration are necessary, by means of the explicit recognition of the welfare purpose inherent in it by the collective bargaining agreement that has been enabled for such recognition by law of stability. Alternatively, experimentation of a sort of negative income tax, widespread in the USA, on some portions of the agile worker’s remuneration could occur. “In short, that of agile work is an open construction site” concludes lawyer Cafiero, whose personnel directors, labor lawyers, trade unions, company management are called to build its foundations “.
