The agreement between European social parties for a shared directive on teleworking: an opportunity to bring the Italian debate on smart working back to the right track
A little less than twenty years after the Framework Agreement on teleworking of July 16, 2002, the European social parties - as part of the 2022-2024 European social dialogue program - have decided to take over the process of defining a framework common for all the countries of the Union on the subject, after that, especially in recent years, the national disciplines have begun to depart from a regulatory framework that was beginning to show the signs of time with respect to the so-called third generation telework.
The first point of the agreement reached on 28 June 2022 states that, in order to adapt the regulation of teleworking to the new needs related to the digitalization of work (hybrid work, right to disconnect, work organization, health and safety and data processing, among other aspects), the way forward is that of the “revision and updating of the autonomous agreement on telework of 2002 to be prepared for adoption through a legally binding agreement implemented through a directive”.
From a method point of view, compared to what happened in 2002 and in terms similar to what happened in the field of fixed-term contracts, the chosen path is that of stipulating an agreement with a view to its implementation by the European institutions (so-called statutory agreements) and not according to the procedures and practices of the social parties and member states (so-called non-statutory agreements), with extremely important consequences in terms of constraints for the domestic legislator, since the direct effect of the autonomous agreements is excluded from the majority doctrine, while implementation by means of a directive guarantees a full binding effect vis-à-vis the legislator.
Moreover, considering that the new agreement will also have as its object, by express provision of the parties, also the right to disconnect, the choice is destined to overcome the Parliament Resolution of 2021 (European Parliament Resolution of 21 January 2021 containing recommendations to the Commission on the to disconnect - 2019/2181 INL) in which the Commission was invited to submit a proposal for a directive on the subject.
Avv. Guido Brocchieri
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