With the publication in the Official Gazette number 221 of September 23 (Suppl. Ordinario n. 53), entered into force on the Legislative Decree no. 151 of 14 September 2015, containing the “Provisions for rationalization and simplification of procedures and obligations for citizens and enterprises and other provisions on employment and equal opportunities, in accordance with Law 10 December 2014 n. 183. ”
Together with the other decrees of the proposed labor reform, the Jobs Act, this text addresses, in particular, the update of a set of rules and procedures in the light of the technological innovations that occurred in templates and business contexts of work and production.
Article 23 of Legislative Decree. n. 151/2015 undertakes to amend Article 4 of Law n. 300 of 1970 – also known as the Workers’ Statute – to reshape the integral case the prohibition of remote controls, in the knowledge that they must take into account, in the current production, as well as audiovisual equipment, although other instruments “from which derives also the possibility of remote monitoring of workers ‘and those’ used by the worker to make work performance. “
As originally formulated Article 4 of the Statute of workers to paragraph 1 established a prohibiting the use of audio-visual systems and other equipment for the purpose of remote monitoring of workers. In the second paragraph, however, the ban was falling, only on condition that the employer had observed as strictly provided therein, as it was established that plants and control equipment “that are required for organizational and productive or by job security, but from which derives the possibility of remote monitoring of workers’ could be installed prior agreement with union representatives in the Company (without which, according to the ruling of the Ministry of Labour of 19 June 1989, not He could seek an agreement with RSA of any other production units of the same company, but the employer could forward their application directly to the Inspectorate Department of Labour, which could possibly be contested by trade unions identified in art. 19 of the Statute ) or, in the absence of agreement, with the approval of the DTL territorial jurisdiction.
The reform intervention Article 23 in question, seems to clarify the jurisprudential debate built around the series of control cd “Defensive”. In this regard, the Supreme Court has recently confirmed that the safeguards put in place the prohibition of remote controls in the second paragraph of Article 4 of the Statute apply to the defensive controls, aimed at ascertaining unlawful behavior of workers’ when, however, these behaviors relate to the exact fulfillment of the obligations stemming from the employment relationship, and not, instead, when they concern the protection of foreign goods to the same report, “stating that those are legitimate checks intended to ensure the worker’s misconduct and damaging the company’s assets (See. Cass. n. 3122/2015 and Cass. n. 2722/2012).
The purpose of the rule, therefore, is to balance, on the one hand, the requirement relating to the organization Labour and production put in place by the employer and, secondly, the right of the lender to not seeing subjected to a controlled remotely carry out its activities in the workplace, “identifying a specific enforcement proceedings and the same individuals participate “(Cass. n. 16622/2012).
It should be noted, since the heading and the first sentence of the aforementioned news article. 4, as the “other equipment” of the standard previously in force it has been replaced by a formula that could include other situations in which you may incur in the series by a remote control (including, but not limited to, defensive), then introducing a policy that takes consider “other instruments”, which, obviously, the Legislature of 1970 could not imagine.
In the exercise of balance between a business organization in a position to acquire competitive advantages to the entrepreneur and respect the dignity of workers, about the rule to draw a line below which lie those instruments whose use has the potential to make the employee subject to control, as for the performance of activities made in constant work it is not necessary that these uses these tools to perform the service (this is the typical case of audiovisual and those for storing and tracking data using devices geolocation). Beyond this line, as stated in the second paragraph of the new Article 4 in question, they are placed all the tools by which the worker is employed, that these uses “to make work performance”, including those for detection of access and presence (in this area include, for example, PCs and mobile phones, the software of electronic communication, the same corporate intranet).
As for the installation and use of instruments referred to in the first paragraph was confirmed a procedure of codetermination between employer and trade union representatives (RSU or RSA) – which finds place through an agreement with the trade unions in the various production units of the company for the installation and the use of the Control – Preliminary than installing the tools, which brings the employer fails to apply for administrative authorization of the competent DTL.
In this context, the news is the fact that the Legislature intended to regulate the procedure for the case of firms award-localized, tipizzando the centralized procedure by the possibility of entering into a contract between the ‘ business and trade unions comparatively representative at national level or, in case of non agreement, through the application for authorization to move directly to the Ministry of Labour.
In this way – and on the basis of Notes Ministry of Labour on 16 April and 7 May 2012 – seem to have significantly simplified the steps to the decentralized levels, thus being able to avoid the possible direction of differing administrative headquarters devices, opposite to the installation of a technological system that has characteristics constructive and standardized operation and completely identical territory. Although, in the writer’s humble opinion, you would wonder why the Legislature so far used a criterion that could be called “the closer” to the staff within the individual production units, justified by the nature of the personal rights potentially limited use remote control systems, preferred the comparative criterion of the representativeness of trade union organizations at the national, rather than confer viability to those coordinating bodies of trade unions already provided by the last part of Article 19 of the Statute and reconsidered from the point 7, Section Two, of the Consolidated Law on representation of the January 10, 2014 signed by Confindustria and the CGIL, CISL and UIL.
The installation and use of these tools require the existence of exclusive needs organizational and production, work safety protection of company assets, constituting, these, the conditions for the signing prior union agreement or authorization of DTL.
Also , all information collected by the means of control under paragraphs 1 and 2 must be used in compliance with the rules on privacy. In fact, paragraph 3 of the amended Article 4, at the end of the rules on remote controls, requires that this information “can be used for all purposes related to employment provided that the employee is given adequate information of how to use the tools and of carrying out checks and in compliance with the provisions of the decree of 30 June 2003, n. 196 “on the processing of sensitive data. It should ask ourselves if between “all purposes relating to the employment relationship ‘also includes typically disciplinary purposes, being able to configure in this case a kind of expansion of the power to direct the employer.
On the other hand, having, on the one hand, exist a need for “protection of corporate assets’ in the case regulated in paragraph 1, and the other to respect the privacy policy for the use of the data collected with the direct instruments of work, it would not be inappropriate if the company would undertake a review not only of their job descriptions – for the purposes of a better demarcation between defensive controls and other remote controls – but also the policy of using all those tools Work used by staff to perform their duties direct or incidental, in order to remain consistent, the new scenario created by the news of Article 4 of the Statute of Workers, over the application of certain fundamental principles of privacy already enhanced by Guarantor for the protection of personal data by the Guidelines for the use of email and the internet in 2007 (such as relevance, correctness, no surplus of treatment, prohibition of profiling), useful to protect the worker from a potential massive surveillance and total .
The editors note:
(American Lawyer, 8 October 2015. Article Charles Rombolà )
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