REGULATING WORKING TIME
2. Working Time and the Regulation of Lavoro Agile The regulation of lavoro agile has been introduced by the Act No
2.2. Rest Periods and the Right to Disconnect
The regulation of working time for lavoro agile provided by art. 18 is complemented by the specifications contained in art. 19 which defines, along with art. 21 (40), the mandatory contents of the individual agreement of lavoro agile. According to art. 19, § 1, the agreement must contain the regulation regarding how work should be performed outside employers’ premises also with ref-erence to the exercise of the directive power and the use of ICTs as working tools. In addition, art. 19, § 1, expressly states that “the agreement also indicates employee’s rest periods and the technical and organizational measures needed to guarantee the disconnection of the employee from technological working tools” (41).
As such, the agile worker is not only entitled to the safeguards re-garding working time as regulated by the Legislative Decree n.
66/2003, but the law provides necessary tools to guarantee the respect of those rights and goes even beyond.
The specification in the context of the individual agreement of rest periods is specifically intended to avoid overlapping be-tween working time and the private sphere. It also guarantees that both parties are conscious of the limits of the subjection of the employee to the employers’ prerogatives, so that the enjoy-ment of rest periods can be guaranteed. In Italy, mirroring the Directive 2003/88/EC, rest periods are defined a contrario from the definition of working time, which corresponds to “any peri-od which is not working time” (42). The difference in the case of
(40) Art. 21 of the Act No. 81/2017 requires that the agreement of lavoro agile includes specific provision regulating how the employer can exercise the power of monitoring the work performance provided outside of the em-ployer premises and which are the offences put in place by the employee in the context of the same work performance that can be sanctioned by the employer in the exercise of the disciplinary power.
(41) See Art. 19, § 1, second period, Act No. 81/2017.
(42) See art. 1, § 2, letter b, of the Legislative Decree No. 66/2003.
lavoro agile is that the distribution of the working time – intended as “any period during which the worker is working, at the em-ployer’s disposal and carrying out his activity or duties” (43) – could be partly (or totally) decided on by the employee. There-fore, the indication of precise rest hours cannot be determined.
Notwithstanding, it is in the interest of both the employer and the employee to determine at least certain rest periods, in order to comply with minimum requirements, such as the minimum consecutive rest hours. In this direction, company-level collec-tive agreements providing a common regulation for lavoro agile for the employees (44) often include a provision specifying that the work performance could be distributed in a limited time-span (for example, between 8 a.m. and 8 p.m.) in order to guar-antee that employees enjoy at least the minimum consecutive rest periods and do not perform night work. The time-span is, in turn, specified in the individual agreement.
Obviously, limitations regarding the reference time-span for the work performance cannot always be included – for example, when the work activity requires a connection with places located in different time zones – and even when the provision is ap-plied, it cannot alone protect the employees from the health-related risks deriving from connectivity and over-working. This limitation is why specific emphasis is provided in both individual and collective agreements to a statement reaffirming that lavoro agile does not imply any change regarding the number of hours agreed between the parties. Clearly, a statement cannot provide effective protection: not only do remote workers tend to work
(43) See art. 1, § 2, letter a, of the Legislative Decree No. 66/2003.
(44) While the regulation of lavoro agile contained in the Act No. 81/2017 does not expressly provide a specific role for collective agreements, it is quite common that, before stipulating individual agreements of lavoro agile with their employees, companies stipulate a collective agreement with work-ers’ representatives in the company in order to establish a common refer-ence for the stipulation of individual agreements.
more hours than their peers at the office (45), but it is also par-ticularly difficult to distinguish between working time and the private sphere.
Against this backdrop, it is possible to understand the function of the so-called right to disconnect and why it was introduced in the law regulating lavoro agile (46). It should be noticed that – as well as in France and Spain and coherently with the purposes outlined by its first proponent and the European Resolution as well – the right to disconnect is aimed at two different purposes:
protecting employees’ health and safety by guaranteeing the re-spect of rest periods and preserving their work-life balance and their private life (47). While these purposes are expressly estab-lished in the law (48) in France and Spain, a similar understand-ing of the right could be interpreted by analysunderstand-ing the legal framework of lavoro agile in Italy. On the one hand, the form of work itself is introduced to improve employees’ work-life bal-ance; on the other, the regulation concerning the right to dis-connect is contained in the same provision where it is requested to indicate rest periods in the individual agreement.
(45) See J.MESSENGER ET AL., op. cit., p. 25.
(46) It should be noticed that, while a large majority of Italian scholars has intended disconnection as a right of the employee, some commentators, building on a literal interpretation, doubts of the nature of the disconnection in terms of a subjective right of the employee. See A.ALLAMPRESE, F.P A-SCUCCI, La tutela della salute e della sicurezza del lavoratore agile, in RGL, 2017, No. 2, I. Against this position, inter alios, M.LAI, Innovazione tecnologica e riposo minimo giornaliero, in DRI, 2020, No. 3, p. 678.
(47) Already in 2002, J.-E.RAY, Naissance et avis de décès du droit à la déconnexion:
le droit a la vie privée du XXI siècle, cit., p. 941, understood the right as a meas-ure needed to address the risks posed by “tele-disponibilité” (availability via ICTs) to the health and safety of workers (with regard to the effective en-joyment of the right to rest) and to work-life balance (because of the spillo-ver between work and personal life moments). As for the Resolution, there are continuous references to these two dimensions starting from the prem-ises.
(48) See art. L2242-17 of the Code du travail and art. 88, § 1, LOPD.
The regulation does not provide for a definition of the right to disconnect, nor does it include specific measures to be put in place in order to reach the above-mentioned purposes, but only requires the parties of the agreement of lavoro agile to identify and specify which are the technical (49) and organizational (50) measures that they decide to apply. While the generality of the provision could be intended as a weakness in the regulation, since without a minimum common standard, the implementa-tion of the right could vary a lot and be, in many cases, ineffi-cient (51), the ratio of this legislative technique should be con-nected to the differences of work organization in different com-panies and sectors. Given that the right to disconnect should be applied in different contexts and to a variety of employment re-lationships, a common standard could have been inefficient, and the decision regarding the measures to be put in place for the implementation of the right could be better taken by actors who better know the company and the specific employment relation-ship.
Absent a clear definition and acknowledging the flexibility need-ed in terms of disconnection from technological working tools in the new world of work, it is thus fundamental to propose a possible interpretation of the right in the context of the regula-tion of working time in lavoro agile.
(49) Examples of technical measures are the adoption of pop-up windows, out of office messages and the server deactivation in certain period of the day.
(50) Organizational measures relates to mechanisms put in place in order to avoid that the employee is solicited during certain time, such as policy on the use of ICTs, guidelines regarding the contact of reference in case of un-availability of the employee, etc., but they can also refer to awareness-raising campaigns and training.
(51) See, for example, A.FENOGLIO, Il diritto alla disconnessione del lavoratore agi-le, in G.ZILIO GRANDI, M.BIASI (eds.), op. cit., p. 561.
2.3. A Possible Interpretation of the Right to Disconnect