Focus | Business organization and work schedule setting: what degree of flexibility among mandatory protections?
Quality of life and well-being, work-life balance, sustainable work environment and people-centeredness… Undoubtedly, work rhythms are an important aspect to consider if one wants to rethink the approach to work activities more generally.
The challenges are significant and the regulatory framework stringent. Working hours, right to rest, “overwork,” damage from psychophysical wear and tear… these are all (and many) aspects to consider. How is it possible to calibrate work to business needs and, at the same time, give due consideration to workers’ personal needs? Can work rhythms be modulated? Within what limits? Under what conditions?
The questions are many, so we attempt to provide the essential elements to initiate a fundamental reflection for each reality in an Italian context.
What guidance does the Italian law provide regarding work rhythms?
Work activity must necessarily be carried out in accordance with time limits and people’s need for rest.
In terms of hours, the law indicates that:
- daily performance may not exceed 13 hours, and
- weekly performance may not exceed 48 hours, including overtime (this is the maximum schedule, not to be confused with the normal schedule, generally set at 40 hours per week).
In terms of rest, the worker is granted:
- a break of at least 10 consecutive minutes, when the daily working time exceeds 6 hours;
- a daily rest, equal to 11 consecutive hours every 24;
- a weekly rest (usually coinciding with Sunday), equal to 24 consecutive hours every 7 days, cumulated with the daily rest hours.
The protections established in favor of the worker are of supreme importance: at the national level, Article 36 of the Italian Constitution recognizes the inalienability of the right to rest while, at the European level, the Charter of Fundamental Rights and Directive 2003/88/EC sanction the right of each worker to a limitation of maximum working hours and daily and weekly rest periods. In this sense, the employer is vested with a specific contractual responsibility, set by Article 2087 of the Italian Civil Code, to ensure suitable working conditions to preserve the health of employees (see Cass. n. 34968/2022).
Is there room for flexibility?
Regarding the organization of working hours, without prejudice to the limits of working time, specific agreements may be made, also in the individual employment contract, aimed at organizing daily, weekly, monthly or annual working hours (e.g., depending on the needs, fixed or elastic hours may be established, indicating in the contract either the punctual start and end times of work or some time slots).
It will also be possible to apply the so-called multi-period schedule, governed by the collective bargaining agreements: in this case, the weekly schedule will be calculated as an average over a period not exceeding one year; therefore, depending on work variations and production needs, there will be weeks in which normal working hours may be less than 40 hours while there will be other weeks in which this threshold will be exceeded, but the excess will not be considered overtime work (in that case, the hours worked in excess on a given week will be made up through periods of hourly reduction on other weeks).
For the organization of breaks, the employer can freely decide on the timing of breaks considering the technical needs of the business.
Regarding the use of rests, exceptions to the ordinary rules may be established by specific legislation applicable to certain sectors of activity or by collective bargaining agreements concluded at the national level, with the comparatively most representative trade unions. For example, exceptions are observed to the consecutiveness of daily rest hours, for activities characterized by fractionated work periods during the day or by on-call regimes, and exceptions to the coincidence of weekly rest with Sunday are provided for activities and services whose Sunday operation corresponds to technical needs, or meets significant community interests or are of public utility.
Can these parameters be further waived if the employee gives his consent or if the employer pays an extra over and above the surcharges?
Recently, the labor judge of the Court of Milan dealt with the case of a worker who complained that he had been on duty for several months, every day, for 15 hours a day, with a break of only half an hour. It emerged from the preliminary investigation that the worker had consented to and received increased compensation for work performed beyond the maximum scheduled hours. Nonetheless, the judge recognized that the worker had suffered damage from psycho-physical wear, ordering the employer to pay compensation (Court of Milan, Labor Section, dated 8.08.2022).
It should be noted that only the treatment most favorable to the worker can be contracted without special formalities (even with company use), while waivers of rights are always and necessarily subject to specific formal bonds. The worker’s consent to go beyond the limits established by the regulations is therefore not enough. Any derogation from the established discipline, which as such is presumed to be less favorable to workers, will necessarily have to have been the subject of appropriate protection, verifying that appropriate compensation and protection are provided for the workers (thus it will have to go through the stipulation of specific collective agreements, at territorial or company level, with the intervention of the comparatively more representative trade unions at the national level).
What is “overwork”? What is psychophysical wear?
“Overwork” occurs when the worker performs his activity beyond the limits of normal tolerability, according to the rules of common experience (in the case examined by Cass. 8267/1997, overwork had been recognized in the case of a worker who had worked overtime hours continuously and waived his vacation, even though he had given his consent to it).
Stress damage or psychophysical wear is the damage of a non-pecuniary nature, different from biological damage, which is characterized by negative effects on the health and general well-being of the worker and derives from the failure to recognize the constitutionally guaranteed right to rest. For the purposes of its compensability, it presupposes the existence of a concrete injury suffered by the injured worker; the latter will therefore have to provide proof of the damage even through simple presumptions (it will be sufficient to demonstrate the employer’s failure to respect working time limits and the right to rest). The “quantum” of the damage can also be determined equitably, considering the heaviness of the service and any indications of the collective discipline; the payment of contractually stipulated surcharges is considered for the purposes of damages.
Already in the European Agreement on stress at work of October 8th, 2004, the regulation of working time was considered one of the determining aspects of the adequacy of business organization and work processes. Indeed, if not properly managed, work organization is a source of stress at the level both of the general work environment and of each individual person.
Thus, work rhythms are the focus of attention and assessing their impact at every level is crucial, both in cases where there are symptomatic indications of stress that one wishes to remedy (high absenteeism, high staff turnover, reduced productivity, increased errors and accidents…) and in cases where one wishes to maintain a high rate of well-being within the company.