6.1 The Polarization of the Remote Working Debate: A Critique of Critical Positions

During the COVID-19 pandemic many millions of people worked from home: the process of remotization of work, which had already begun in previous years thanks to telematic technologies, digitalization and the development of knowledge work, have undergone an incredible accelerationFootnote ¹. The pandemic has in fact imposed rigid social distancing: Remote working has taken place exclusively in the form of teleworking without the possibility of experimenting with more flexible and nomadic forms of remote working and, above all, without rethinking and redefining the organization of work but simply adapting the existing one to the needs of distancing.

Once the health emergency has passed, this vast experimentation has opened up a multiplicity of perspectives for new forms of work organization inspired by a new model of employment relationship: less hierarchical, more autonomous, based on the trust and responsibility of the worker. Scholars, legislators and the social partners have realized that remote working has an extraordinary transformative potential capable of bringing about a paradigm shift in the employment relationship, in the very concept of subordinate work, as well as in the configuration of managerial prerogatives, which are redefined to make them consistent with the organizational models of remote working.

As often happens when faced with potentially disruptive innovations, positions on this issue have become polarized. Critics argue that remote work could involve a trade-off (quid pro quo) between a greater use of remote labor (perceived as less controllable) and lower levels of employment protection (Countouris Reference Countouris, Countouris and De Stefano2023). It is clear that the risk of exchanging greater autonomy in the performance of the remote work for a reduction of protections can be envisaged. However, it seems that the opposite happens: on the one hand, the law and collective bargaining reiterate that the remote worker maintains all the rights of the standard employment relationship, without any exceptions and without any discrimination, from other new social rights created (such as the right to disconnect) in order to avoid new risk of exploitation. In essence, remote workers, at least in the systems I am considering here (in summary the EU systems) not only maintain existing rights but enjoy additional rights and benefits, suitable for the new working context.

Critics also argue that remote work triggers managerial and HR strategies, including the increasing recourse to bogus self-employment and on-demand arrangements that could have the effect of thinning down the responsibilities and obligations that employers typically take charge of when hiring labor under a standard contract of employment. In essence, according to this thesis, remote working would be a new form of job precariousness, which critics define as “contractual distancing.”

The thesis in question tends to confuse remote work with other forms of work, those of the gig economy (such as platform work), and to assimilate remote-work strategies to work outsourcing strategies. In reality the two phenomena are very different. While outsourcing took segments of production outside the physical and legal confines of the company, and consequently expelled the workforce (which was then re-internalized through subcontracting), the phenomenon of organizational redesign with which the remote working does not involve any outsourcing of work, which remains perfectly integrated into the production cycle and organization of the company. The risk that remote working entails an increased trend of misclassification is also contradicted by the fact that it is often a priori classified by law and collective bargaining as subordinate work: Thus, for example, the Italian law on “agile working” states that this is a particular voluntary way of carrying out an employment relationship (see art. 18.1, Act. N. 81/2017), and the same is stated by the European Framework on Telework (art. 2: “in the contest of an employment contract”): Remote working is not a contractual type that can be misqualified but a method of carrying out an employment relationship.

Finally, critics argue that remote working “undoubtedly” involves increased managerial control and surveillance, with increasingly intrusive forms of control and surveillance. In this regard, critics invoke the risks of using AI to create Orwellian (or Foucauldian) scenarios of panoptic control and a massive algorithmic system of surveillance and discipline. This point is very delicate, because, in fact, remote control systems, for example through telematic or digital technologies, can be very penetrating and invasive. However, two considerations apply here. The first: It is not clear why these control systems should be used massively precisely in a work performance model that is based on the trust and autonomy of the worker and not on the command and control model. The second: The scenario of panoptic control does not take into account the regulatory instruments of a national or supranational nature aimed at putting a stop to possible Orwellian drifts. Just think of the attraction within the scope of the European GDPR of all automated decision-making and monitoring systems at work, according to a very broad and flexible notion of “personal data” which naturally includes the algorithmic system (which implies automated processing of data) and with the employer’s obligation to carry out an impact assessment on fundamental rights (art. 29 a of the GDPR). And just think, as regards domestic systems, that the Italian law on agile working not only provides (as we will see) an individual (and therefore adaptive) regulation of the employer’s powers, including the power of control, but also reiterates the application of all legislative safeguards aimed at limiting managerial prerogatives.

Countouris and De Stefano, however, in the conclusion of their analysis, find an optimistic vision and agree – even after having listed all the possible risks – on the fact that the world of work can find remote working a formidable tool and a historic opportunity to free millions of workers from the excesses of managerialism and to move from an idea of work in which workers are controlled and subordinated to an idea of work in which workers are more autonomous, collaborative, and worthy of personal trust.

Rather than following one or another of the positions that polarize the debate on remote work, in this chapter I will try to clarify the possible effects that a real organizational redesign based on remote work is entailing and, above all, the effects that this redesign could result in the near future, modifying many dimensions of work and impacting the regulatory structure of the employment relationship and in particular the concept/notion of subordination. In doing this I will try to base myself, as far as available, on reliable and scientific organizational studies, as well as on the same virtuous and advanced practices of collective bargaining, with particular reference to the Italian experience, but not only.

6.2 Organizational Studies and Experiences of Collective Bargaining

Organizational studies are of fundamental importance to understand the possibilities of developing an organizational redesign suitable for innovating the characteristics of the employment relationship and in particular the dimension of subordination and the subjection of the worker to managerial powers. The ability of remote work to modify the concept of subordination depends, in fact, mainly on the desire to design and develop a business system based not only on a new organizational philosophy, but also and above all on a new idea of work, which includes planning of roles, tasks, and professions integrated with new technologies, with a view to increasing the worker’s capabilities, the quality of work, personal autonomy in work (understood as the worker’s ability to control his own working life), and freedom from work, understood as the ability to move away from work to carry out one’s life by exercising the ability to choose.

To be genuine, to produce socially appreciable results, this process of organizational redefinition must not be unilaterally directed by the company according to its exclusive productive interest, but the fruit of a process of adaptive and discursive transformation, in which all stakeholders participate (management, territorial and national public regulatory authorities, individual workers, workers’ union representatives) (Butera Reference Butera2020).

In the public and jurisprudential debate, the company is increasingly conceived as an actor that is not only economic but also social and political. In its complex axiological dimension, in which the economic function is accompanied by a social function, the company, regardless of its legal forms (joint-stock company, simple company, etc.), no longer tends exclusively toward profit, according to the model of maximization of capitalist utility embodied by the shareholders’ value model – whereby company directors are the agents of the shareholders – but adopts other rationalities and other horizons of meaning. These further rationalities of the company embrace societal values, which range from the protection of the environment to the protection of work in all its forms and applications, from consumer protection to respect for commercial and industrial partners (against whom no abuse of power, abuses of economic dependence, etc.), thus guaranteeing an overall balance between interests and social purposes of a societal type. It is legitimate to think that the organizational design of remote work should be placed in this evolutionary scenario of the actor-company, which we could define in terms of Sustainability (Novitz in this Volume), in which remote work becomes part of a more complex process of neo-republican civilization of business and workplaces. A process in which environmental values, social values, and personal values re-orient the behavior of the company in the perspective in which the latter becomes increasingly conceivable as a “common good” (Deakin Reference Deakin2012).

In this open process of social transformation of the company, which cannot be reduced to a simple question of organizational/production technique, all the regulatory tools typical of labor law are valorized, such as social dialogue, collective bargaining, and co-determinationFootnote ². The analysis will therefore have to take into consideration the experiences of collective bargaining, especially at company level, which took place in the post-pandemic phase.

Collective bargaining has grasped the need for a transition toward forms of remote working based on the interests of the workers, and not just businesses. We read, for example, in a recent collective agreement of the Benetton Group (2021–2023):

In this agreement (but the theme is recurring in the generality of Italian collective bargaining on this topic), the interest of workers in carrying out the activity in a ubiquitous manner and in achieving a better balance between life and work times clearly emerges.

Changing “how” and “where” to work should not be the result of heteronomous rules imposed by company management, nor of managerial projects prepared on the drawing board and implemented top down. From this perspective, unilateral practices, where existing, should be corrected, thanks to the action of trade union organizations and collective bargaining, which can play a decisive role in the preparation of a framework of shared rules for the planning of remote work itself. According to the ILO, collective bargaining can be a good tool for design teleworking practices and inclusive hybrid work, reconciling the preferences of employers and those of workers in terms of flexibility and autonomy, on the one hand, and by guaranteeing decent conditions for remote work, on the other hand.

Also, in other European countries company bargaining has demonstrated dynamism in the shared planning of remote work. For example, in Germany, which does not have a law on remote working, there are many examples of good negotiation practices which demonstrate that company agreement leaves the specific design on mobile working to the teams and their managers and this leads to an increase in the loyalty of skilled workers and greater employee satisfaction (Junge Reference Junge2021). Italian collective agreements also indicate joint planning with individual agreements that define the scheduling of “agile” working days between the worker and his direct manager, according to a planning that takes into account the needs of the worker and those of the organization: thus, for example, in the Leonardo Group agreement (March 8, 2022). The situation seems more problematic in France, where case studies in companies of different sectors and sizes show the diversity of the implementation of teleworking, and the negotiation is permanent, broken down into phases and punctuated by agreements and amendments (Giotto Reference Giotto and Thoemmes2022).

This type of change can therefore only occur with transformative projects within individual organizations supported by public promotion and regulation and collective bargaining programs, which involve worker participation and which place workers at the center of organizational transformation processes. In particular, these projects must be guided by strategies for the valorization of work and people, and must be oriented toward the planning of quality work, professionalized and decent work, capable of ensuring equity, opportunities, quality of life both for a population of educated workers, and to that unfortunately very large portion of workers who find themselves in unsatisfactory working conditions.

6.3 Organizational Redesign and the Notion of Subordination

Remote working is one of the forms that the employment relationship can take to adapt subordination to new organizational contexts. In this new organizational dimension, subordination, from a model rigidly placed in the hands of the owner of the means of production, can be socially redesigned: no longer a manifestation of the unilateral power of the employer, to be limited as much as possible in order to avoid abuses and excesses, but a different way, more democratic and participatory, with which the worker experiences his work in the company, a non-deterministically hetero-directed way relating to “how” to carry out the service and contribute to the results of the company.

First of all, remote working can increase the worker’s autonomy, extend the worker’s spaces of freedom, and increase the balance between the person’s working and nonworking life. But before delving into this point, we must carry out a general reflection on the concept of subordination.

Legally speaking, in civil law legal systems subordination is the expression of the worker’s subjection to the power of direction and control of the employer. In certain legal systems, such as the Italian one, this element of hetero-direction is expressly provided for by law (art. 2094 civil code). Thanks to the directive and control power that constitute devices of an administrative authority, the company reduces the transition costs typical of the market and allows the worker’s activity to be conformed to the changing needs of the organization (to all possible states of the world, as scholars of the economic analysis of the contract say) (Coase Reference Coase1937). The principle of subordination reflects the authority of the employer, which is expressed through acts of exercise of legal powers of a private nature, but provided for and regulated by law (or, in the absence of law, recognized and regulated by jurisprudence).

It is debated in economic theory whether this authority is truly an irreplaceable necessity for the capitalist enterprise or whether, instead, non-hierarchical forms of organization of production are possible and not based on the exercise of unilateral prerogatives. According to economic historian David S. Landes, hierarchy is a “technology” of capitalism that is absolutely irreversible in terms of historical evolution. We can try to improve the inherited structure, increase worker participation in management decisions, diversify tasks, and rotate tasks, but we will not be able to abolish the hierarchy of responsibility and authority. On the contrary, economic theorist Stephen A. Marglin argues that hierarchical authority is not essential for achieving high productivity. From this perspective, material prosperity is also possible with a non-hierarchical organization of production. The social function of hierarchical organization does not lie in technical efficiency but in the accumulation of capital. In modern capitalism the institution dedicated to accumulation is the joint-stock company. The essential social function of the joint-stock company is the mediation carried out by its hierarchy between the individual producer (and shareholder) and the income on the market of the product of the company itself, assigning a part of the relative income to the expansion of the means of production. In the absence of hierarchical control over production and work, the joint-stock company would be forced to equip itself with egalitarian institutions for the accumulation of capital, or be satisfied with the level of accumulation already achieved. In this perspective, the parcellation of labor is not functional to efficiency but to hierarchical control, and the latter is in turn functional to justifying the indispensability of the production process.

The question of hierarchy and its more democratic alternatives has always been at the center of organizational science that studies the governance of work transactions. According to this perspective, the company can rely on market mechanisms, hierarchical-organizational mechanisms, clan mechanisms, and mixed mechanisms, in which market and hierarchy merge and form sub-models of quasi-market or quasi-hierarchy.

In the market model (typical of self-employment) information is ensured by prices and output and the level of collaboration is minimal, because the exchange is contextual and reciprocal. The alternative to the market (and its transaction costs) is hierarchy, where relationships with the worker are governed by the principle of authority. The logic of the market is therefore replaced by the action of managerial hierarchies, which is a source of “use of the organization” costs (e.g., loss of control as the size of the company increases). A third form of governance of work transactions is the clan, which by some is placed as an alternative to both the market and the hierarchy, while by others it is placed in connection and interaction with them. In this configuration, working relationships are regulated by the principle of loyalty, that is, adherence to certain values of solidarity or ideal principles that are spontaneously accepted and create a climate of collaboration (Hirschman Reference Hirschman1970).

The level of communication and cooperation is high. It is therefore a relationship based on trust. The clan enhances and develops values of shared references, common languages and meanings, sense of belonging, and loyalty toward the corporate community and professional groups within the company (Ouchi Reference Ouchi1980).

A nonhierarchical organization model, which focuses on trust, such as that of the clan, can be compared to the remote working scheme, especially in the agile version of Italian legislation, but not only. This clan model enhances the perspective, advanced by Marglin, of overcoming the hierarchy and the system of control and discipline of work typical of the company born from the Industrial Revolution. In that historical model the factory was created not so much for the advantages offered by new technologies based on water and steam, but for the advantages in economizing the costs of discipline and surveillance. In fact, the genealogy of subservience takes us back to a system of rules that are justified by the distrust that one party has toward the other. Labor law contains within itself the seeds of this mistrust which permeates the employment relationship on both sides (De Stefano et al. Reference De Stefano, Durri, Stylogiannis and Wouters2024). Labor law therefore seems ambiguously to be nourished by this “no-trust” paradigm which undermines the possibility of developing a more balanced, more democratic, less asymmetrical, equitable relationship between the parties. At the same time, however, labor law cannot help but enhance trust as a typical element of the bond that binds the parties of the employment relationship together, so much so that dismissal for personal reasons is conceived as a consequence of the breaking of the bond of trust (in common law: damage (the implied term of trust and confidence) that must necessarily exist within a relationship marked by personalistic and cooperative elements.

Now, the organizational transformations that underlie the remote working model represent an opportunity to rethink this distrustful model to replace it with a cooperative paradigm, based on trust and, consequently, on the autonomy of the worker.

6.4 Trust: A Resource for Remote Working

Trust, understood in the broadest sense of relying on one’s expectations regarding the behavior of others, is an elementary situation in social life. For everyday life, trust is an essential component of the human horizon, an essential element of the world, whose alternatives are fear and chaos. Personal trust, which is offered to human beings, is possible because it is assumed that they are in possession of a personality, that they are the ordered and non-arbitrary center of a system of action, with which it is possible to come to terms. The recognition of the freedom of the other is implied in the fiduciary relationship. In fact, trust is the generalized expectation that the other will juggle his own freedom, with the mysterious potential of the actions made possible by his personality, with the personality he has presented and made socially visible.

Now, it is clear that remote work, by the very fact that it takes place outside a physical space (the office, the factory) marked by the continuous control of the worker by the employer, develops an implicit trust potential and latent in the employment relationship to the extent that it simultaneously enhances the worker’s freedom with respect to his work activity and the constraints that subordination provides, both from a spatial and temporal point of view (where and when to work) and from the point of view of way of working (how to work). It is true that, as the most critically perceived doctrine of the possible risks induced by remote working points out, companies sometimes intensify remote control, rather than reduce it. But this intensification of control, if it really exists, must be considered as a truly perverse effect, as a true social pathology of remote working, contrary to the culture of organizational change and, therefore, as toxic and illegitimate, to be countered in the shared and participatory planning of organizational change.

Remote work cannot be based on the same distrustful schemes that we have mentioned. If this were the case, remote working would lose its very raison d’être and would be reduced to a form of pure and simple “distancing” of contractual performance, governed by the same systems of command and control of the more reactionary Taylor-Fordism, strengthened from technological surveillance tools. But this is not the remote working that the social partners are planningFootnote ³. This is not what emerges from the social dialogue nor from the many collective agreements at company level which underline the managerial style that the profound organizational change is triggering. The trend in collective bargaining highlights the transformative aspect of remote working, stating that it is based on a cultural change, whose center of gravity is represented by trust and responsibility. In an Inter-confederal Agreement on agile working for artisan businesses and SMEs in Italy, the social partners state that they want to

The valorization of trust as a decisive factor in organizational redesign also emerges from the analysis of HR management guidelinesFootnote ⁴. These declared and shared purposes demonstrate that, in the planning intention of the social partners as well as in the stated HR objectives, the organizational method of remote working actually marks a decisive change in the conception (theoretical and practical) of the employment relationship, which is finally recognized and identified by elements, so far mostly denied in the work organization of the Taylor-Fordist enterprise, such as autonomy and personal trust.

6.5 Freedom and Trust

Freedom, as an expression of personality, is at the origin of the need for trust: freedom is the complex of actions for which one is personally responsible and is the source of the ability to learn trust. Now, that action which we recognize as the effect of a binding directive given to us by a hierarchical superior cannot be attributed to the personality. Hierarchical subordination, in which continuous orders and directives are expected, does not require particular trust: The subordinate slavishly carries out commanded activities, without freedom of action. The subordinate, who instead wants to show himself worthy of trust, must be put in a position to express his personality with an industriousness and conscientiousness that go well beyond the diligent execution of an order given; the worker must enjoy freedom of action, and in this way carry out tasks with a loyalty that corresponds to the trust placed in his person and his freedom (Luhmann Reference Luhmann1979).

Now, this fiduciary model, in which elements of the person, of trust and of freedom are connected in a circle which, to be virtuous and to be credible, and to be taken seriously, must be institutionalized; that is, it must be generalized within legally established frameworks and with clear and enforceable rules. One of the vectors of this juridification of remote work is therefore collective bargaining, which in this matter also operates in harmony with a third source, individual negotiation (individual negotiation is in fact provided for by the law on agile working, as we will see, but it is, however, at the center of remote working in many legal systems as a voluntary provision). Perhaps for the first time not two, but three regulatory sources are at work with equal dignity in the discipline of the institute: law, collective bargaining, and individual autonomy.

In an Italian Group agreement (Leonardo), the parties established that “agile working is a model of work organization that combines greater autonomy, within the context of a relationship of trust between employee and manager, allows for greater orientation toward objectives already set at the beginning of the activity.”

The survey conducted by the Committee established at the Italian Ministry of Labor in 2021/2022 found that agile-remote working can promote the balance between personal and work spheres, but also autonomy and individual responsibility toward achieving objectives, also favoring a saving in terms of costs and a positive impact on productivity. Likewise, the analysis conducted by the study group also made it possible to detect some critical issues, including those linked to the dimensions of coordination of the agile worker with the overall organization of work, the sharing of information, the reduction of response times, to the correct balance of pauses. The conclusions of the Ministry’s working group state that:

6.6 Autonomy and Freedom

There is no doubt, for the reasons we have expressed so far, that these elements of autonomy, on the one hand, and trust, on the other, are connected to the modification of the how of work, of how the worker experiences his professional activity and the margins of action he has at his disposal to make his work an activity with meaning, not alienated (as far as it is possible to de-alienate work in a capitalist productive system of production).

The connection between autonomy, trust, and objectives is the heart of the model, and implies a necessary transformation of the traditional approach to legal subordination as a necessary and typical condition of the employee. It is known that this normative notion of subordination represents the fulcrum around which labor law was built as a discipline for the protection of the worker against the power of the employer. The power of the employer is not simply the expression of an imbalance of negotiating power between the parties, and it is not simply a private power of the company, attributable to the need that every company has to organize the means of production. The employer’s power is foreseen (and legitimized) by the legal system in the very definition of employment relationship or the subjective figure of the employee, be it of a legal nature or jurisprudential.

This traditional paradigm of labor law can, however, be modified by the same legislator who, at the origin of labor law, effectively legitimized the social and economic power of the capitalists. The Italian law on agile working has started this journey. While qualifying the relationship as subordinate, and without abolishing the powers of the employer, the law has introduced changes that cannot be traced back to the traditional model, even allowing the worker to be able to negotiate those powers to create a set of interests consistent with the purpose of the law. But subordination is undergoing some transformation processes also at the level of the concrete organization of work, increasingly guided by an organizational rationality no longer focused on hierarchy and control but on autonomy and trust. These elements of autonomy must be specified and can also be modeled. Starting from the idea of personal autonomy proposed by Joseph Raz as “the vision of people controlling, to some degree, their own destiny, fashioning it through successive decisions throughout their lives” (Raz Reference Raz1986), it was proposed to relate the worker’s autonomy to work itself through job satisfaction and job security that derives from the personal experiences at the workplace, or arise from the worker’s ability to control his or her working life (Lofaso Reference Lofaso2007). In this perspective, the worker’s autonomy presupposes a plurality of conditions, such as the mental ability to identify and know how to resolve issues that affect his working life, the access to information sufficient to generate a range of options to workers, the independence from coercive power, and the modes of participation that empower the worker to effect changes in his working life. By applying this scheme to remote work, we can verify the worker’s degree of autonomy and the deviations from the command-and-control paradigm typical of the status of subordination.

It is first of all clear that, with reference to the definition proposed by Raz, the remote worker controls his own (working) destiny in a much more meaningful and effective way than a traditional worker, subjected to a rigid hierarchy, to a fixed working time, to spatial limits and to assiduous, direct and continuous controls by management. Being able to achieve objectives in relative autonomy, being able to manage working time autonomously, enjoying a much greater level of trust and recognition than the standard worker, the remote worker can to a certain extent be considered the actor and author of his own working life. Voluntarily deciding to work remotely, consensually defining the patterns of remote work (which days to be present and which days to be remote) and being able to balance, with greater breadth than the standard worker, the needs of the company with personal needs also in terms of place and time of performance, being responsible for the achievement of objectives without being subjected to slavish control of work performance, the remote worker can certainly be said to be more independent from the employer’s coercion than the standard worker. Naturally, to these dimensions of autonomy, typical of remote work, we must add all the other elements of work autonomy deriving from legislative labor rights, collective bargaining, and systems of participation or industrial democracy, where existing, which concern the entire group of company workers.

Another theoretical framework that can be usefully used to evaluate the morphogenesis of subordination in the context of remote work is that of the freedom (positive, not negative) of the worker, in the different theoretical declinations that this freedom can take. Also in this case, the worker’s autonomy constitutes a countervailing force to capital in the workplace (Lofaso Reference Lofaso2007), but the theoretical presuppositions of this autonomy are part of broader theories of moral philosophy and political philosophy that must be adapted to the context of work, to the workplace, to the logic and rationality of the company.

The three main theories on positive freedom are neo-republicanism, which preaches an idea of freedom different from the liberal one (understood as simple non-interference) and which allows active participation of the citizen in the decisions of public power; the capabilities approach, which focuses on the guarantee of a decalogue of fundamental rights and on the possibility of the subject to acquire different functioning alternatives; and social freedom based on recognition, that is, on an intersubjective relationship between parties who recognize each other, and mutually attribute the dignity of autonomous and self-conscious persons.

The command-and-control model, the exercise of directive and control powers, and the strict and invasive direct surveillance that management can exercise within the walls of the factory or office are all factors that prevent the worker from freely exercising alternative functioning and enjoying recognition as an autonomous and self-conscious person. The idea of business presupposed by the principle of authority, the lack of fiduciary openings toward a worker-subject who must be continuously monitored, and the presence of a management that prescribes and punishes are the antipodes of the principle of positive freedom, and are instead entirely consistent with the idea of negative freedom, which is not interested in the spaces of positive freedom and is not concerned with removing the economic and social obstacles and constraints that limit or prevent the enjoyment of this positive freedom. In a word, subordination is the basis of a condition of alienation of work which prevents people from acquiring his own self-awareness through work and from realizing the desire for recognition which is the basis of social freedom. And this is even more true as the conflict with positive freedom risks increasing exponentially due to an increasingly invasive technological innovation that reduces the margins of discretion and autonomy of work (Supiot Reference Supiot2017), and by legislative developments aimed at strengthening managerial prerogatives in order to consolidate employer’s capacity to determine the terms of the contract of employment.

To achieve positive freedom in the workplace it is necessary to redefine the legal concept of subordination, reducing the potential for domination that it presupposes and which in fact takes place within the employment relationship. If positive freedom is not the mere absence of constraint on the subject but is autonomy, that is, the positive ability to determine one’s own choices by oneself, that ability needs a “training” process that makes it mature and robust: That is, it will have to go through the various articulations of recognition. In fact, both within the neo-republican and neo-Hegelian perspective, individual freedom may not be exercised subjectively, but only intersubjectively (Cabrelli and Zahan Reference Cabrelli and Zahan2017), that is in the social and institutional dynamics of recognition and to the extent that subjects enjoy protection and resources available to exercise their functions (Schuppert Reference Schuppert2014), as also suggested by the capabilities approach (Sen Reference Sen2007; Pettit Reference Pettit2015; Del Punta Reference Del Punta and Langille2019).

Remote work, with its potential for liberation from the stringent constraints of the Taylor-Fordist work organization, makes it possible to address in a new way the issue of subordination and the democratic deficit that characterizes the employment relationship. This is possible only when remote work is not identified with teleworking, if it does not fall flat on the scheme of externally directed work from home, as happened in the COVID-19 period (Sostero et al. Reference Sostero, Milasi, Hurley, Fernandez-Macías and Bisello2020). In other words, the perspective cultivated here requires moving to trust-based remote working models and forms of organization which do not bind the worker to a “fixed and predetermined” place and which do not electronically or digitally reproduce the constraints of management and control typical of the work performance carried out within the physical perimeter of the company.

6.7 A Form of Hybrid Remote Working: The “Agile” Working

In this perspective, a comparative reference to Italian legislation may be useful. Law N. 81/2017 introduced a peculiar form of remote work, which is called agile work and which differs from the more classic telework. While teleworking constitutes a form of organization and/or performance of work where the work performance is regularly carried out outside the premises of the company (as stated in Article 1 of the European Framework Agreement on Telework), agile work is a hybrid form of work, which provides for the performance partly in the company premises and partly outside, in any other place. Agile work is defined as “a mode of execution of the employment relationship established by an (individual) agreement between the parties, also with forms of organization by phases, cycles and objectives and without precise obligations of working hours or workplace, with the possible use of technological tools in order to carry out the work activity” (Art. 18, Law N. 81/2017). Work is performed partly within the company and partly outside without a fixed workstation, only within the limits of the maximum duration of the daily and weekly working hours imposed by law and by collective bargaining.

What is remarkable about this definition is the flexibility it entails in terms of work execution: (1) there is no legal obligation to respect working hours (but there is, in order to protect the worker, a constraint not to exceed the maximum limits set by law and by collective bargaining); (2) there is no legal constraint of the place of work performance; (3) there is no legal obligation to carry out a simple work activity, because the concept of work refers to goals (as well as phases or cycles), therefore to measurable results (this seems to bring the employment relationship closer to the paradigm of self-employment, which is normally an obligation of result, namely the execution of the work as an “opus” agreed in the contract, and not an obligation of means); (4) there is no obligation to use technological tools to perform the work, but this is only a possibility.

Another decisive aspect to be highlighted concerns the purpose of agile work. Normally, the employment relationship is carried out in the exclusive interest of the company. The law does not direct the employment relationship (or the methods of carrying out the work activity) toward an objective recognized as being of interest to the worker. If anything, there may be individual/collective legal institutions that serve an interest of the worker in the context of the work performance (e.g., the regulation of parental leave). However, in the case of agile work, the Italian law establishes that such flexible working method has a specific end within the interest of the worker: facilitating the reconciliation of life and working time. It is true that alongside this end, the law also provides for the goal to increase the competitiveness of the company. However, while the increase in productivity seems to be a (hoped for or expected) effect of agile work – due to the improvement of the worker’s personal situation in terms of satisfaction and of well-being – the social purpose, in order to make the worker able to reconcile work with private life, is the real objective of the regulation.

This social aim of reconciling life and work is particularly relevant in the public sector. The Guidelines of the Ministry of Public Function on agile work in Public Administrations (2017) provide the right key to interpreting the legislation on agile work, establishing that Public Administrations identify “the innovative methods, alternatives to teleworking, most suited to the needs of work-life balance for workers” and that “measures for reconciling working life and family life can increase individual and organizational productivity.” A monitoring system is also advocated for, in order to verify “the impact that the conciliation measures have in terms of organization and the quality of the services provided.” In essence, the guidelines clearly indicate that the purpose of agile work in the public sector is to reconcile the life and working time of employees and in this way increase productivity and improve services, to be understood as a secondary effect of the increase of worker satisfaction and well-being.

The Italian legislator has therefore seemingly supported, even before this emerged in the post-pandemic period, a clear subjective option for new forms of work activity that are closely related to people’s well-being. In empirical research this social propensity is described as the sum of three components: the “subjective” (or hedonic) well-being focuses on the aspect of experiencing a pleasant life a combination of positive emotions, satisfactory working life, lack of negative effects, and so on; the “eudaimonic” well-being is focused on flourishing, self-realization, or positive psychological functioning; the “social” well-being focuses on the quality connections that are seen as sources of energy, social contribution, and integration (Microsoft New Future of Work Report 2022). The interplay between work and personal life fits into this complex dimension of well-being at work, activating a series of subjective transformations that have yet to find a precise legal formalization, but which, nonetheless, can be linked to the positive effects of flexible work in the interest of the worker. In this perspective, work–life balance represents an overcoming of work–life conflict. While such model sees work and life as competing factors, in a zero-sum game where the time dedicated to one of the two spheres is subtracted from the needs of the other, in the work–life balance model the focus shifts toward acknowledging equal importance of both work and life in the work–life relationship. In the work–life balance model, satisfaction arises from the possibility of performing and controlling multiple roles, and of being able to carry out activities compatible with the priorities emerging from the vital world. The next step leads to the work–life integration model where work and life demands are dynamic and transactional, with fluid and always balanced priorities between one sphere and the other.

6.8 The Discipline of the Managerial Prerogatives in the “Agile” Mode

As we have seen, in the agile work scheme the methods of exercising the employer’s powers (the directive power, the control power, and the disciplinary power) are defined in the individual agreement with a purpose that is not only productive but social, that is, to make the worker able to reconcile work and lifetime. Using the language of the capabilities approach, the purpose of the law is to make the powers of the employer consistent with the worker’s life needs and thus make him acquire a real alternative of functioning (Langille Reference Langille2019). Agile work therefore affects the very autonomy of organizational power, which must be rethought according to an objective of conciliation. It can be argued that even if an employee is working away from the employer’s premises it is still the employer who determines the purpose and the means of the work. However, this observation cannot be applied to the scheme of agile work, which functionalizes the directive power for a conciliation purpose and above all requires that the methods of exercising power be negotiated to be adequate with respect to the purpose set by the law. On the other hand, the range of work activities that can be carried out remotely and in a hybrid form such as agile work are not only that of data processing, but potentially any activity that has the content of technical analysis, study, design, and implementation of projects. This new management philosophy is therefore based on giving people back flexibility and autonomy in choosing spaces, hours, tools to use, and the operating methods in order to achieve objectives, with a greater accountability concerning results.

The agreement related to agile work regulates the exercise of the employer’s directive power. From a theoretical point of view, negotiating the modalities of exercising a power means making this power less unilateral: It means reducing this power to a consensual element of the contract. The rationale for this provision is twofold. On the one hand, considering the specific purpose of agile work (reconciling life and work time), the parties must identify the methods of exercising the directive power that are most consistent with the purpose to be achieved. Indeed, it would be inconsistent with the purpose of the law if the employer exercised the directive power in such a way as to prevent conciliation (by ordering continuous changes in the place of work, by ordering compliance with a rigidly predetermined working time, etc.).

In the public sector, the Guidelines suggest that instead of traditional controls, the individual agreement on the exercise of the power of control could provide for availability periods according to general needs, in order to ensure coordination of the work performance with the overall organization of the employer. Given the purpose of reconciling working activity with the need for protection, the Guidelines state that the control power must be exercised with regard to the results of the work performance, in both quantitative and qualitative terms, in relation to the priorities defined by the manager. The verification of the achievement of the objectives also adapts to this new scheme, and is carried out through a report agreed between the manager and the worker, or through moments of discussion during the days the worker is on site. As can be seen in the Guidelines on agile work, there are no indications for the exercise of the control power in an authoritative form, but in a completely consensual one. This cannot fail to have important theoretical and practical consequences on the redefinition of the concept of subordination that emerges from this regulatory model.

6.9 Final Observations

The analysis carried out attempted to clarify in what terms the post-pandemic remote working model can actually contribute to evolving the concept of subordination in a new direction, based on the trust and autonomy of the worker. Although inserted in a process of capitalist valorization of human work, the organizational redesign of the organization of work guided by a genuine desire to make the worker freer, more autonomous, able to acquire a degree unprecedented control of a production process in which it participates in a not completely externally directed way, can be an achievable objective. This perspective is based on normative elements that we believe we have identified in the most recent trends of collective bargaining and social dialogue, which mark a until recently unexpected transition toward quality forms of work organization, centered on autonomy and trust, and designed to facilitate the reconciliation of work and lifetimes.