The end of trust-based working hours in Italy?

In Italy, working hours are regulated by Legislative Decree 66/2003 on the implementation of the EU Working Hours Directive. This applies in principle, with some sector-specific exceptions, such as flying personnel, to all persons employed in the private sector and public service; there is no exception for senior executives. Even if time recording usually takes place in practice at least in large companies, a corresponding (express) obligation is not standardised either by statute or by case law. Rather, Art. 5 of the aforementioned decree is limited to the finding that overtime is to be calculated and remunerated separately without a specific obligation to record. In practice, it is therefore widespread that (due to the lack of reliable time recording) no correct remuneration of the overtime worked takes place. In addition, it corresponds to the contractual practice that a flat-rate remuneration for all overtime is contractually determined for employees in management functions and the employee is expressly released from the obligation to “punch in”. Finally, the form of “smart working”, i.e. the project-related work methods that are not linked to the location, are clearly prevalent in both the private sector and public service, where it has so far been assumed that this is not compatible with rigid working time models.

In view of the previously described realities of the Italian working world, measures for the implementation of the requirements formulated by the ECJ appear essential. While the Federal Labour Court in its decision was linked to the fact that an obligation to record at least overtime can already be derived from the existing statutory regulation, this does not apply according to the current interpretation of the law in Italy. Like in Germany (to date), it is also assumed in Italy that in particular the criterion of “precise recording” demanded by the ECJ requires a legislative intervention. Since many aspects of working life are regulated in collective agreements in Italy, it would also be conceivable that the topic will be addressed by the social partners. However, it does not appear to be ruled out that even the Italian jurisdiction will sooner or later lose patience: From the indisputably statutorily standardised obligation to pay overtime and the likewise statutorily standardised requirement to “restrict” recourse to overtime, with a “trick” similar to the one the German Federal Labour Court applied, it is certainly possible to read the obligation to record working time, since otherwise it is hardly possible to assess to what extent overtime hours are actually worked. It is undisputed that changes are required. The future will show how this will happen.

Autor: Florian Bünger