L’evoluzione della regolazione del lavoro agile nella PA durante la pandemia, tra polifunzionalità dell’istituto e prismaticità delle questioni emergenti dalla sua applicazione

[Machine translation] Introduced by the legislator in 2017, until the outbreak of the Covid-19 pandemic, agile work represented a marginal institution in Italy, not receiving a significantly better reception than telework, or the other figure of so-called remote working known (for over twenty years) to our legal system. The sudden imposition of physical distancing as a key measure for the prevention of contagion has suddenly led agile work — more willingly conveyed through the media with English smart working — to be a method of executing the employment relationship that is absolutely prevalent in the public sector and largely present in the private sector. This quantitative leap has been made possible, from a regulatory point of view, by the introduction of some temporary exceptions to the general legislative discipline (above all that of the consensual principle governed by the individual agreement) which, in combination with the effect of other exceptional rules (in particular the restrictions on freedom of movement and the consequent, although scalable, confinement at home) has generated a sort of “emergency variant” of agile work, Who lives the paradox of being a legally precarious figure destined to overcoming, but at the same time also the form in which the institution, net of the contraction in numbers that occurred after the first “lockdown”, is taking root in the legal system and in individual and collective practices. In addition, the pandemic legislation on agile work has highlighted a multifunctionality of the institution in addition to the original dual one (increase in competitiveness, reconciliation of living and working times), foreshadowing the stable inclusion among the aims of the institution also of welfare functions that, already present in the first interpolations of the ordinary legislative discipline, have become more numerous and more compelling situations, with the prediction of Personal of the worker in which the option for agile work is subtracted of contractual autonomy and arises not only as a criterion of priority, but also of a subjective legal situation that has been defined as a 'right' or, at least, a 'expectation of law'. In this context, the major structural change seems to concern the public sector, since the emergency legislator has chosen to seize the opportunity of the organizational shock generated by the forced employment of the institution in order to trigger an overall review of work processes within the public administration. This choice, taken starting from art. 263 of the so-called Relaunch Decree and, over the course of a few months, subject to significant fluctuations, immediately brought to the agenda the issue of reviewing the system of sources of agile work, in particular in the relationship between law, ministerial directives, collective bargaining (originally marginalized but obviously called into question by the quantitative importance acquired by the institution in reality) and bargaining individual (originally central in light of the functions of the institution) and today looking for new solutions so as not to be downgraded to mere formal compliance).