INL operative indications on the issue of authorizing measures pursuant to Article 4 of Law No. 300/1970

Prepared by Francesca Tironi, Giulia Spalazzi and Marco Bove

With Memorandum No. 2572 of 14 April 2023, the Italian Labor Inspectorate (“INL”) provided operational indications in relation to the release of authorization measures for video surveillance systems and the tools from which derives the possibility of remote control of workers.

The INL first reiterated that the installation of an audiovisual system or other instruments from which remote control of workers may derive must necessarily and as a priority be preceded by the execution of a collective agreement with the RSA and/or RSU. The agreement with the company representatives is, in fact, the priority path envisaged by the legislator. The authorization procedure through an application to the competent territorial inspectorate is only possible and subsequent to the failure to reach an agreement with the trade unions.

In the absence of an agreement between the employer and the company trade union representatives or of the subsequent authorization provision, it is not possible to proceed with the installation, as any consent, albeit informed, expressed by the individual workers is not sufficient. In this case, in fact, there would be an illegitimate and sanctioned installation.

The Inspectorate then specified that: (i) companies with more than one production unit located within the area of jurisdiction of the same Inspectorate may submit only one application for authorization and (ii) companies located in different provinces, as an alternative to entering into individual agreements with the RSA/RSU, may enter into a single agreement with the trade union associations that are comparatively more representative at national level.

The INL then clarifies that Article 4 of Law No. 300/1970 applies to companies where there are workers. In particular, as specified by the Inspectorate, a company with no employees that nevertheless plans to hire employees may submit an application indicating the number of employees that will be in force at the start of the activity.

The INL subsequently clarifies how to use employee geolocation systems, which have been widely used in recent years. In this regard, the INL, adopting the conclusions of the Garante della Privacy regarding the use of geolocation systems, clarifies that it is possible to install systems that (i) exclude the continuous monitoring of the employee, (ii) allow the display of the geographical position by authorized persons only when strictly necessary with respect to the legitimate purposes pursued (iii) allow, as a general rule, the deactivation of the device during breaks and outside working hours, (iv) carry out, as a general rule, processing by means of pseudonymization of personal data, (v) provide for the storage of the data collected only when necessary and with storage periods proportionate to the purposes pursued.

Finally, the INL clarifies that the protections provided by Article 4 of Law 300/1970 also apply to services that are predominantly personal, continuous and performed in an employer-organized manner (even if organized through platforms, including digital ones) and to self-employed workers.

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