Category: Insights

Definition and distinguishing characteristics

“Smart Working” or “Agile Working” was first introduced in Italy through L. #81 22 May 2017 with the purpose, made clear in the aforementioned law, to increase competitiveness and facilitate life-work balance.

In order to understand the true meaning of “agile working” it is, first and foremost, important to free the context from possible and recurring misunderstandings and to point out that “smart working” is neither a new contractual typology of work relationship (being smart working still a subordinate form of employment), nor a type of work entirely performed remotely from home, which instead characterizes the so-called telecommute.

It is instead a particular modality to carry out the subordinate employment relationship which entails a new approach to working and collaborating within a company, allowing the worker, through a contract between the parties, to perform the duties partly inside the company premises and partly outside, without specific work schedule and workplace restrictions.

The Smart Working Observatory scientific director offers a precise definition of Flexible Work, stating:  “Smart Working means rethinking work from a more intelligent standpoint, questioning traditional obligations related to workplace and schedule, leaving people more independence to define work modalities based more on result-based responsibilities. Independence, but also flexibility, accountability, valuing talents and trust become the key principles of this new approach.”

The necessary smart working corollaries are the following:

Schedule and workplace flexibility

The first element that characterizes agile working is flexibility, namely overcoming the typical pattern of subordinate work performed inside the company and within a set work schedule.  Smart working entails, in fact, allowing the employee to decide, for the time spent working outside the company premises, to organize his/her own professional activities, without any time constraint, without prejudice to the maximum daily and weekly work schedule as provided by law and by CCNLs, and without the need to physically commute to the company, still freely electing his/her work place as an alternative to company premises, which may be his/her own home, as well as a co-working space or, more simply, a normal public library.

Work activity organization by cycles, phases and objectives

According to the smart working corollary, as a direct consequence of the first, it is necessary for the company to review work activities organization, which entails passing to a definition of work activities by phases, cycles and responsibilities, hence no longer based solely on the hours spent working.

If, on one hand, smart working’s typical flexibility involves worker’s freedom to balance life and work, on the other, determining periodic objectives or precise work phases implies responsibility, or better, worker’s accountability.

The simultaneous compresence of said elements allows, in fact, the employer to ascertain his/her employee’s productivity and determines, also under such profile, a change in the “employer’s control approach”.  The employer, in fact, moves from a formal type of control, limited to the compliance with work schedule and ordinary diligence in performing duties, to a merit-based control, free from schedule and company regulations, but aimed at verifying the actual achievement of the results.

More trust conferred upon the worker, as an essential element of smart working, goes, therefore, hand in hand with result-based accountability, leading to more company competitiveness and productivity.

Technological equipment

The third smart working corollary is the use of technological equipment, necessary to carry out work activities outside company premises.  The minimum technological requirements to implement a smart working program will be the availability of a PC, a company phone and internet connection.  Such instruments must be provided by the employer who is required to guarantee their proper functioning and respect of safety standards.

How and when it may be implemented

Smart working, as a method of carrying out work duties, may be introduced at any time in the employment relationship, upon written agreement with the employer.

81/2017 explicitly provides the necessity of a written agreement between the parties which must be compulsorily sent via online communication to the Department of Labor and Social Policies.

Such agreement, on the basis of what provided by art. 19 L. 81/2017 must provide the following minimum requirements:

Duration: The contract can be permanent or temporary

Termination: In case of permanent contract, termination is possible with a notice period of at least 30 days (90 for disabled workers pursuant to art. 1 L. #68 March 12 1999), or without notice in case of just cause dismissal.  Conversely, for temporary contracts termination is not allowed unless in presence of a justified reason.

Work performance modality: The contract must be governed by laws related to work activities execution outside company premises, with specific focus on the technological equipment used and the respect for the worker’s right to disconnection.  It is indeed important to point out that the predominant use of IT technologies combined with goals definition by phase and cycles without a pre-set work schedule may not and must not mean a demand of required availability by the company, given the worker’s right to disconnection, which needs to be regulated within the contract.

Control and disciplinary power: Furthermore, control modalities of work performance outside company premises must be outlined in the smart working program, considering art. 4 of the Workers’ Statute.  The data collected via IT technology instruments may be, in fact, utilized for every scope related to the employment relationship, as well as the exercise of disciplinary power, as long as the worker has been adequately informed on the use of the instruments and the possibilities of control.

Smart-worker’s tutelage

An essential element of the law which introduces the so-called agile working is the equality of treatment of smart workers compared to employees who do not adhere to such typology of work performance.  The legal and compensation process must be the same, as well as the adoption of adequate safety rules.  In particular, with regards to work schedule, along with the right to disconnection, the law recognizes the inviolability of time limits provided by the laws in force and collective contractual regulations.

“Agile” workers also have the right to tutelage provided in case of injuries or sickness in the workplace also for those services rendered outside company premises and during the commute between their home and the location chosen to perform their duties.

On such note, INAIL has provided operative instructions in newsletter #48/2017.  It is furthermore observed that the 2019 Budget Law grants priority to agile working applications submitted by female workers within the three years after the conclusion of their maternity leave period and by workers with disabled children.

Advantages for companies

Using the evidence collected by the Observatory on smart working via surveys and pilot cases, we can assert that the benefits that can be obtained through the introduction of Smart Working by companies can be tangible and relevant, translating into the improvement of worker’s productivity, reduction of absenteeism and cost reduction for physical premises.

The legislator itself identifies two reasons for which the employer and the employee may benefit from resorting to smart working modalities:  It is competitiveness increase on the employer’s side and work-life balance on the worker’s.  Increase of competitiveness may be seen from the dual angle of productivity increase and also corporate employer branding, attracting a more talented and motivated labor force.

The more tangible and immediate reason consisting in reducing corporate expenditures, in terms of lower cost of space and equipment, as well as work performance, adds itself to the first two.  In other words, the worker who carries out his/her work duties  by way of agile modality allows the company to reduce costs related to space rentals, utilities and equipment, as the necessary space for the staff is reduced in proportion to the intensity and frequency at which work in agile modality is performed.

Ultimately, labor cost reduction may also stem from lesser burdens related to overtime work, which does not match with “smart” working modality which, per its nature, does not have predefined work schedule restrictions.