On 7 December 2021, on the initiative of the Ministry of Labour and Social Policies, the major Employers’ Associations and Unions signed the National Protocol on Agile Work.
The purpose of the document – that has not the force and the value of Act - is to provide detailed guidelines to their signatories for the drafting of the upcoming collective bargaining agreements, whether national or second-level. The Protocol is, moreover, very useful for the drafting of individual agreements that will be executed in the near future, pending the negotiation of said collective bargaining agreements. We would indeed like to recall that Law 81/2017 requires smart working to be regulated by individual agreements (irrespective of the existence of a higher-level collective regulation that, in any case may not replace the individual one).
The issues addressed by the Protocol are not only those regulated - sometime in very broad terms - by Law 81/2017 but also further issues that have turned out to be particularly delicate and controversial as a result of the experience accumulated in the last period, characterised by massive, intense and prolonged use of agile work. Such use, supported by the urgent need to fight the pandemic, has been the most significant on-field test on the feasibility and the advantages of agile organisations of the work; at the same time it proved that Law 81/2017 itself is not a sufficient tool to promote an efficient and balanced regulation of the topic as it leaves open too many issues.
We want to point out that, besides “increase in competitiveness” and “balance of life and work times” - which were the proclaimed objectives of Law 81/2017 - the Protocol addresses some typical ESG issues, such as environmental and social issues like the promotion of parenthood and the protection of fragile and disabled people. We believe that the future work organisations will significantly develop said issues.
Particular attention is also paid to the identification of places suitable for carrying out agile work, clarifying that such places must not only ensure the health and safety of workers but also the security of the data processed, with the possibility to identify a priori prohibited places, classified as unsuitable for such purposes.
Again with a view to taking a pragmatic approach to sensitive issues, the Protocol specifies the responsibilities of workers and employers in terms of the management and maintenance of the technological tools whereby services can be rendered; likewise, it regulates the equally delicate issues of right to disconnect and remote control. These are all issues that operators have to deal with on a daily basis when drafting and managing the agreements concerning agile work.
Furthermore, we would like to recall some general principles stressed by the Protocol which one could take for granted, but it is not always so in reality. First and foremost, the principle that a work organisation based on smart working does not represent a right for any party: no party, therefore, can raise any claim it if the agreement is not signed; second, the adoption of agile work cannot give grounds for different treatment (or, even worse, discrimination) – either in melius or in pejus - with respect to those who work according to a “traditional” organisation model in terms of remuneration, grading, level, promotion and career paths.
Finally, I would like to underline the importance given to ongoing training programs and access to them also by agile workers. Such programs give rise, at the same time, not only to rights but also to obligations for both parties in a context where they are equally challenged to keep up to date all the time with the constant advances that technology makes available to them.
We are available for an exhaustive analysis of the document, for once written in an accessible style, with a view of properly drafting all the documentation necessary to implement a correct and efficient organisation based on agile work.
This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For further information please contact Michele Bignami