How the military job changes at the time of the coronavirus: the "agile job"

(To Avv. Francesco Fameli)

The health emergency taking place in our country has also had a significant impact on the daily life of the personnel of the Armed Forces. In fact, not only have the duties of the military increased - now also called to support the police in the difficult work of supervising compliance with the restrictive rules imposed by the Government since the Prime Ministerial Decree of 8 March 2020 (v.articolo) -, but they were willing unprecedented measures in the history of the Republic, which have had a significant impact on the same employment relationship with the Ministry of Defense and on the same concrete methods of execution of the related services.

The circular of the Ministry of Defense - Directorate General for Military Personnel (PERSOMIL), dated March 20, 2020 (and of which we observed the first days of application with keen interest) has in fact dictated provisions on agile work and absence from work ( extraordinary license, permits and leave, quarantine and home stay) following the outcome of Legislative Decree 17 March 2020, no. 18 and in reform of the previous ministerial circulars of 6 and 10 March 2020.

Let us therefore proceed with the analysis of the aforementioned profiles, dealing specifically in this article with how the execution of the work performance changes for the military, following the application also to employees of the Ministry of Defense of the provisions on "agile work ".

1. What is meant by "agile work" and what are the rules that govern it

In absolutely general and concise terms, "agile work" means all the methods of performing subordinate work that result in forms of remote work, without time or place of work restrictions, usually characterized by the use of of tools, workstations and technological devices (so-calledsmart working").

The matter found its general discipline in the law 22 May 2017, n. 81, in particular articles 18 to 24, specifically dictated in terms of flexible articulation in the times and places of subordinate work. With particular regard to the public administration, after the so-called Madia law - law no. 124/2015 -, the guidelines on the promotion of the reconciliation of life and work times, dictated by the Prime Minister's Office with Directive no. 26.

2. Agile work at the time of the corona-virus and the principles that characterize it

The need to contain the spread of the virus has clearly led in recent weeks to the need for unprecedented recourse to the use of agile work.

Now, as is known, art. 87 of the aforementioned legislative decree 18/2020, confirming what was originally provided for by the Prime Ministerial Decree of 11 March 2020 and with the Prime Minister's Directive no. 2 of 12 March 2020, established that, in order to prevent the spread of crown-virus infection, its own agile work must be the ordinary way of carrying out work for employees of public administrations. This until the end of the epidemiological emergency linked to the COVID-19 virus, currently estimated on July 31, 2020 (a term that can hopefully be anticipated by decree of the Prime Minister, on the proposal of the Minister of Public Administration).

There are basically three fundamental principles that govern the application of the so-called agile work discipline to employees of public administrations:

- the generalization of flexible forms of execution of remote work, through the massive use of information technologies;

- the limitation of the staff present in the offices to a mere "minimum quota", whose presence is absolutely essential;

- the guarantee of completion on the spot only essential services, which cannot be postponed and cannot otherwise be provided.

3. The application of the provisions on agile work to the military

In general terms, the aforementioned circular issued by PERSOMIL on 20 March 2020 dictated specific provisions with reference to the implementation of the rules and principles on agile work with specific regard to military personnel.

In detail, following the order of the aforementioned circular and analyzing its contents in a nutshell, the following was established:

1) scope of: the provisions laid down in the agile work point apply to all personnel, civil and military, of the Ministry of Defense, on permanent and temporary service, detained and recalled (the specification is however contained in Annex B);

2) limitation of presence in offices and barracks: the department commander ensures exclusive presence on the spot a minimum contingent of personnel, through the rotation of the same;

3) rotation criteria: staff can be rotated for whole days, even by alternating agile work and face-to-face work;

4) how to perform the service: the service is provided remotely, ordinarily at one's home, without limitations either by subject or time, subject to the management methods identified by the Commands, also with regard to training opportunities;

5) daily availability band: the military is required to guarantee a daily contact range of at least 3 (three) hours, even if not consecutive, established by the Commands, for the purposes of the report / control on the activity carried out;

6) equation between remote work and ordinary service: a total equalization is established between agile work and the ordinary way of performing the service. Therefore, the military is required to fully comply with the duties deriving from the military system, to comply with the directives received from its hierarchical line and to observe military discipline. The service rendered in agile mode constitutes a service in all respects, including in terms of contributions and social security. Any professional or career penalty, which originates in the sole circumstance that the service is provided remotely, is expressly excluded. However, overtime, hourly recovery and the right to meal vouchers are excluded;

7) instrumentation, expenses and rules on privacy, health and safety: the instruments can be supplied by the Administration they belong to; in the absence, the staff must take care of their own means. All expenses related to the performance of the service (electricity, heating, internet rates, wear of tools) remain the responsibility of the military, with the only exception of the maintenance of the means made available by the same Administration. In the provision of remote services, the military is required to comply with current legislation on privacy (Legislative Decree No. 196/2003, as amended by Legislative Decree No. 51 and 101/2018, in execution of EU Reg. 2016/679), as well as the prescriptions dictated by the health and safety information , referred to in Annex C;

8) daily meetings and reports: remote or videoconferencing meetings replace other types of meetings, so as to allow the commands to exercise the management, coordination and control functions;

9) reception of the public: the reception of the public must ordinarily take place electronically, in order to limit access to institutional offices only in cases where this is strictly necessary.

Final notes

The crown-virus emergency has forced our legal system to massively apply that instrumental of norms and institutes which goes by the name of "agile work". The public administration has not been able to exempt itself from the general trend and so has the Ministry of Defense in its particular area, with the specific features that we have tried to summarize.

Certainly, the rules applied and the provisions dictated are still for too many immature profiles and in need of additions and modifications. Lo smart working applied to the military, it could exacerbate the classic criticalities already experienced by the institute in its (too short) implementation in general to the employment relationship, first of all the risk of employer abuse and conversely of opportunistic behavior by the staff, really hardly sanctionable.

One thing, however, is certain: the current contingency will contribute to the faster development of advanced and more effective models of work organization within the whole public administration, including the military one. In this last particular context, indeed, agile work may perhaps find one of its most successful achievements: after all, the military system is already based on those values ​​of responsibility, loyalty and management for objectives and results, which are at the basis of the smart working globally considered. And that's what we all hope for, to then return to normal enriched with new experiences and increasingly effective operating methods.

Photo: US Navy / US Air Force