Remote working: Lavoro agile needs to remain flexible to be smart

If it could be said that the Covid-19 epidemic had any merit, it would be its unequivocal demonstration that many work activities don’t need to be performed in a workplace.

Regarding lavoro agile (also called ‘smart working’ – these are the two terms used in Italy for working remotely) a great debate has arisen in Italy, between those who’ve greeted it as a sort of panacea, able to ensure a better work-life balance and reduce pollution, and those who instead believe that remote working –especially in its most extreme forms, where work is carried out almost exclusively out of the office –has negative effects both on employees’ engagement (and consequently on productivity levels) and on their health, at risk of burnt out due to the relentless connection (and control) allowed by technology.

As is often the case, the truth lies in the middle.

Lavoro agile is a mere tool and, as such, is neither good nor bad: it all depends on how you use it.

In this sense, we should keep in mind that at the core of smart working –according to the fundamental definition provided by Italian law no. 81/2017 –there is the end of the old conception of the employment relationship as a mere provision of work energy unrelated to any result. Its raison d’être is not to allow workers to choose the place where the job shall be performed (this, if anything, is a mere consequence of it).

Article 18 of Law no. 81/2017, in fact, defines lavoro agile as a ‘way of performing the employment relationship set by agreement between the parties, including forms of organisation by phases, cycles and goals and without constraints of time or place of work, with the possible use of technological tools for the performance of the work’, in which the work ‘is performed, partly on company premises and partly outside without a fixed work station, within the limits of the maximum daily and weekly working hours, provided by law and collective bargaining.’

This definition, therefore, implies that work is ‘smart’ even when it is carried out in the office, to the extent that it does not merely consist of being present at the workplace (imposed by the employer) and being at the disposal of one’s employer. This, of course, does not mean that the obligation of the smart worker, who’s still an employee, should be considered as an ‘obligation to render a certain result’, but certainly the achievement (or the failure to achieve it) is relevant, most importantly, for the assessment of their performance.

From this perspective, the agreement regulating a smart working relationship has its source only –as required by law –in the individual agreement between employer and employee, which shall be essential in the definition of any lavoro agile programme. It is, in fact, in this agreement that the targets to be assigned to the employee are provided. This is the most specific aspect of smart working, which separates work performance from the provision of work activity and links it instead to the results that are achieved. Only then can the employee relationship be considered lavoro agile, rather than if the office was no longer considered the workplace.

It should be noted, however, that the individual agreement between employer and employee, can mirror the adherence by the individual employee to company regulations or collective agreements at any level (national, territorial or company). Moreover, collective bargaining can play a decisive role in the promotion and implementation of true smart working, in which employees become responsible for their results and the time taken to achieve them. Since a smart working agreement can meet both employer’s and employee’s needs (article 18 reads: ‘The provisions of this chapter [aim] to increase competitiveness and facilitate work/life balance’), collective bargaining should not impose strict regulations (except in the case of company collective bargaining), instead limiting its impact on the agreement to the most general aspects, such as safety at work or the right of disconnection.

Moreover, the legislator delegates the regulation of the way in which the performance of activities outside the company offices will be carried out to employee agreements (article 18, paragraph 1), in particular: the ‘forms of exercise of management power’ (article 19, paragraph 1); the ‘exercise of the power of control’ within the limits of article 4 of the Workers’ Statute (article 21, paragraph 1); the ‘conduct, connected with the performance of work outside the company premises, which gives rise to the application of disciplinary sanctions’ (article 21, paragraph 2); the ‘tools used by the employee’, the ‘time off’; the ‘technical and organisational measures necessary to ensure the disconnection of employee from the technological tools of work’ (article 19, paragraph 1); as well as, possibly, ‘phases, cycles and targets’ of the performance (article 18, paragraph 1) in addition to the ‘right to benefit from continuing learning’ and ‘periodic certification of skills’ (article 20, paragraph 2).

Only if lavoro agile is applied in the spiriti it is intended, will it be possible to overcome disagreements, which are often more ideological than based on merit. It is difficult, in fact, to believe that the freedom of an employee to organise –within the limits agreed with their employer –times and places for work will not have positive effects for both. On the other hand, the importance of reducing the risk of ‘hyper’ connectedness (that is, without time limits, and under pervasive control by technology), cannot be underestimated.

As stated before, in medium stat virtus.