N 4

October 2016

Preface
On October 8, 2016 changes to the Jobs Act came into
effect. This set of 2015 regulations has funda-mentally
changed labour law.
The most significant changes include:
1.
two types of contracts: apprenticeship and accessory
work;
2.
changes in the legislation on social security benefits;
3.
remote controls;
4. two corrections to the regulations on telematic resignation.

More changes are expected under Stability Law, including recruitment bonuses to combat rising unemployment.
In this newsletter we will focus on the following topics:
I.
II.

the topic of Privacy in the workplace, in particular, the discipline of "Remote controls" operated by
the employer on the activity of employees as a result of the amendment to art. 4 of Law n. 300/1970;
prior notification of international transfers

Privacy in the workplace: new Italian and European

regulation.
In 2015 Article. 4, Law 300 of 1970 (Workers' Statute) was
reformulated by the Jobs Act governing "Remote Controls".

In summary
There is no longer the general ban on the remote control of
workers;
There is the possibility of using audiovisual equipment and
other tools of remote control of workers' activity "exclusively for
organisational and production needs for job security and the
protection of company assets, with prior collective agreement

N 3
September 2016
with the internal trade union representation or the company union representatives or authorized
Senior Labour Inspectors;

Expressly excluded, is the necessity of agreement for trade union or ministerial authorization for the
tools used by the worker for job performance (PCs, tablets, mobile phones ...), even though the same
also construes the possibility of a worker's remote control;
It is possible to use the information and data collected through audiovisual systems (previously authorised) and the working tools (which do not need authorisation) for "all purposes relating to the
employment relationship" provided that the worker is given adequate information on the operating
mode of the instruments and controls in effect and in accordance with the provisions of Legislative
Decree 30 June 2003, n. 196.

Therefore, a prerequisite for the use of data resulting from these instruments (such as PC, tablet,
smartphone) and in order to prevent misuse, there must be compliance with Italian law on Privacy.
Following the introduction of the new standard of the Privacy Authority, it has been applied several times in
recent months with regard to the limits for the use of certain work instruments, sometimes even in "unusual"
circumstances. For example the authorisation of the use of an "app" for detecting clocking in/out, which has
been discussed in the media.
The Guarantor for Privacy expressed on September 8, 2016 against a request made by an administra-tion
agency, concerning the possibility of using a specific applications containing geographical loca-tion features
installed on smartphone devices of employees, enabling a "stamping card and attend-ance recording", by
entering their login credentials and clicking on "button input" and output" for use when travelling.
The Guarantor has provided that "The processing of personal data of employees is subjected to pre-liminary
consents of the geographic location of smartphone devices of employee ownership (and, in-directly, the
geographical position of such workers) through the activation of a direct application of the recognition of inservice presence.
Considering that the personal data relating to geolocation refers to the "geographical location of the
terminal of an electronic communication service accessible to the public" under Article. 4, paragraph 2, letter.
i) of the Code should be treated by taking special precautions and smartphone devices are, in view of their
normal potential use and common use of the same, intended to "follow" the person in possession of it
regardless of the distinction between time working and non working time. This treat-ment presents specific
risks for the freedom, rights and dignity of the employee in accordance with Article 17 of the Code".

It has been pointed out how the employer would need to detect that the clocking in and out was in-deed
carried out at the place of work and not elsewhere, to avoid abuse.
The Guarantor decided to authorise the use of the app, with some precautions, ie requiring that the
administration agency limited itself to retaining only data related to geolocation logged into your workplace
and at the time of clocking in/out, with date and hour, and should, pursuant to the princi-ples of transparency
and fairness, configure the system so as to make more it visible on the device screen, an appropriate icon to
indicate that the tracking function is active, as well as to prevent acci-dental data treatment "beyond the
scope" than the authorised treatment purposes.

N 3
September 2016
A recent Order of 13 July 2016, has drawn a line between "legitimate" software and software that goes
beyond the notion of a work tool."

Treatment under prior evaluation appeared to be carried out by software systems, with no user per-ceptible
(cd in the background) and fit to engage in operations of "monitoring", "filter", "control" and "tracing"
constant and indiscriminate access to the Internet or e-mail service by users.
The Guarantor considered that "such software can not be considered" tools used by the worker for job
performance "(pursuant to Art. 4, paragraph 2, ln 300/1970 ...)" and that such treatment would put them in
violation of the principles of necessity, relevance and not excessive use provided by the Privacy Code that do
not allow massive controls, prolonged, constant and indiscriminate, such as in the present case, the
systematic recording of data related to the MAC Address and particulars of ac-cess to network services.

They are instead work tool software for strictly functional application to work performance, even un-der the
security profile. From this point of view, and without limitation, "tools" may be considered to be the e-mail
service offered to employees (through the attribution of a personal account) and the other services of the
company network, including also the connection to Internet sites. The Guaran-tor specifies that "An integral
part of these instruments are the systems and measures which allow physiological and safe operation in
order to ensure a high level of security of the corporate network made available to the worker (for example:
logging systems for the proper exercise of the e-mail ser-vice, with preservation of the only external data,
contained in the so-called "envelope" of the mes-sage, for a short duration never exceeding seven days, and
anti-virus filtering systems that detects se-curity anomalies in the stations of work or on servers for the
provision of network services; automatic inhibition systems consultation of irrelevant content network, no
recording of access attempts).
Even the National Labour Inspectorate has spoken on the subject in its Circular 2 of 7 November 2016. In
particular, he stated that these instruments must be considered as work equipment, and de-vices that
"constitute the indispensable means to the worker to fulfill the job performance of the ob-ligation in the
contract, and for this purpose placed in use, and made available."
The geolocation systems represent an "added" element to the working tools, so that you need the un-ion
agreement or the authorisation of the Inspectorate of Labour.
If the tracking systems are installed to allow the concrete and effective implementation of job per-formance,
in the sense that the same can not be made without the use of such tools or installation is required by specific
legislative or regulations (eg. use of GPS systems for the transport of valuables than EUR 1,500,000.00, etc.),
neither the agreement nor the authorisation are needed.
It can be assumed that they end up "transformed" into real working tools with the result that, pursu-ant to
paragraph 2 of art. 4 L. n. 300/1970, it is not required to have the collective agreement or the administrative
procedure of an authorisation character (provided for in paragraph 1 of the rule of law itself).
Consistent with the above, there is increasing attention to the issue of privacy from Italian and Euro-pean
legislators with its implications related to employment relationships.
New European Regulation 679/2016 relating to this came into force 25 May 2016

N 3
September 2016
There is so much work to do, by businesses and public administration, to adapt not only to the new Italian
rules on remote controls (and the guidelines set by the provisions of the Authority Guarantor) but also to the
new European Regulations.

Prior notification of international transfers.

October 27 the Official Gazette published the Decree n.
136 dated 10 August 2016 relating to prior communication
of international transfers.
The regulation will come into force on December 27, 2016.
The Decree defines the rules for the electronic filing of
notices required by the "service providers" in the Ministry
of Labour and Social Policy in relation to secondment
workers in Italy.
To better understand the rules: the "service provider is an
undertaking established in another Mem-ber State or in a third country or an agency of labour administration
established in another Member State, which post workers in Italy;
the "subject transfers" is the undertaking established in Italy or another destination relating to trans-ferred
workers;
The "UNI_Distacco_UE" is the model by which the "service provider" fulfills the communication requirements
of Article. 10 of Legislative Decree n. 136 of 2016.

The provider of services, must send a communication that enables the arrangement to be cancelled within
24 hours of the day before the start of the first period of transfer.
Subsequent changes must be sent within 5 days of the modified event. This requirement also applies to
administration agencies and will be through the UNI_Distacco_UE model, which you can down-load on the
website of the Ministry of Labour and Social Policy.

Edited by lawyers Stefano Trifir, Damiana Lesce and Valeria De Lucia]