10.6092/issn.1561-8048/12045
This article analyses the recent European Social Partners’ framework agreement on digitalisation. After contextualising the agreement as an element of European Social Dialogue, it reconstructs its objectives and its main contents. The measures proposed are commented in the light of the broader policy initiatives undertaken by the European institutions on the topic. The procedural approach and the “mainstreaming” of industrial relations practices in all the stages related to the implementation of digital technologies in the workplace are identified as the most promising innovations introduced by the agreement. The general implications for industrial relations practices are finally discussed, with a particular reference to the respective roles and the mutual relationship of employee involvement schemes and collective bargaining.&nbsp;&nbsp;&nbsp;
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Iacopo Senatori
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The European Framework Agreement on Digitalisation: a Whiter Shade of Pale? 
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2020-12-21
2020-12-21
2020-12-21
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ILLeJ
Iacopo Senatori
2020/12/21
10.6092/issn.1561-8048/12045
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Skills
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The European Framework Agreement on Digitalisation: a Whiter Shade of Pale? 
https://illej.unibo.it/article/download/12045/11914
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The European Framework Agreement on Digitalisation:                                      Italian Labour Law e-Journal
a Whiter Shade of Pale?                                                                         Issue 2, Vol. 13 (2020)
Iacopo Senatori                                                                                       ISSN 1561-8048
iacopo.senatori@unimore.it                                             https://doi.org/10.6092/issn.1561-8048/12045




                 The European Framework Agreement on
                  Digitalisation: a Whiter Shade of Pale?
                                               Iacopo Senatori


 1. The context of the agreement. 2. The design and the methodological approach. 3. The
 specific issues addressed in the agreement. 4. Conclusive remarks: the implementing
 mechanisms and the role of industrial relations in the digital transformation.



                                                      Abstract

     This article analyses the recent European Social Partners’ framework agreement on digitalisation.
     After contextualising the agreement as an element of European Social Dialogue, it reconstructs
     its objectives and its main contents. The measures proposed are commented in the light of the
     broader policy initiatives undertaken by the European institutions on the topic. The procedural
     approach and the “mainstreaming” of industrial relations practices in all the stages related to the
     implementation of digital technologies in the workplace are identified as the most promising
     innovations introduced by the agreement. The general implications for industrial relations
     practices are finally discussed, with a particular reference to the respective roles and the mutual
     relationship of employee involvement schemes and collective bargaining.

     Keyword: Digitalisation; Social Dialogue; Artificial intelligence; Right to disconnect;
     Surveillance; Skills.




 1. The context of the agreement.

    The European Social Dialogue has finally entered into the debate on the digital
 transformation of work. The Framework Agreement on Digitalisation (hereinafter FAD),
 signed on 22 June 2020 by BusinessEurope, SMEunited, CEEP, ETUC and the liaison
 committee EUROCADRES/CEC, represents the paramount joint and comprehensive



 
   Assistant Professor of Labour Law, University of Modena and Reggio Emilia and Marco Biagi Foundation
 (Italy). This article has been elaborated in the context of the research project iRel. Smarter industrial relations to
 address new technological challenges in the world of work, co-funded by the European Commission, Directorate General
 Employment, Social Affairs & Inclusion (VS/2019/0081). Usual disclaimers apply. The article has been
 submitted to a double-blind peer review process.
Iacopo Senatori                                                                          Italian Labour Law e-Journal
                                                                                                Issue 2, Vol. 13 (2020)
                                                                                                Section: Miscellaneous


initiative launched by the European social partners since the topic was put on top of the
policy agenda by the EU institutions.1
    Indeed, a number of individual actions have been undertaken in the past years, in
particular on the trade union side, both at the policy2 and the research levels3, to address the
challenges posed by the new technologies on workers, companies and employment relations.
What has been missing, instead, is the elaboration of a specific EU regulatory framework of
a contractual nature to guide social partners at the lower levels and complement (or interact
with) the conspicuous action plan enacted by the European policy makers, the Commission
in the first place.
    The FAD is an autonomous cross-industry agreement concluded under article 155 of the
Treaty on the Functioning of the European Union (TFEU). Recalling a well-established
taxonomy of social dialogue agreements, it can be classified as a “self-initiated and self-
implemented collective agreement” (Sisica).4 In fact, it does not stem from a legislative
initiative by the Commission, nor it requires a statutory implementation by a Council decision
through the procedure laid down in article 155 (2) TFEU. As a matter of fact, a statutory
implementation is hardly conceivable in this case, as the agreement can’t be framed into a
purely legal framework of interpretation: its contents are procedural rather than strictly
normative, while its purpose is more oriented towards the provision of a “soft”
methodological guidance for the national players than on their coordination through a set of
common rules of general application.
    This is a feature that the FAD shares with other agreements of the same kind, with the
only exception of the 2002 Framework Agreement on Telework, which resembles very
closely the model of prescriptive and self-executive contractual texts.5 All the topics dealt
with in such agreements embody the idea of adapting the workplace and the labour market
in response to the pressure by social or technical changes that impact directly on the
organizational and the cultural setting of the enterprise.6 A characteristic that most of the
agreements plainly translate into a list of aims dominated by a cooperative and capacity-
building philosophy, expressed by phrases like “Raise awareness and improve understanding
of employers, workers and their representatives of the opportunities and challenges in the
world of work resulting from the digital transformation”, “Provide an action-oriented
framework to encourage, guide and assist employers, workers and their representatives”, and
“Encourage a partnership approach” between the latter.

1 Although it is difficult to set a specific date, the time span can be circumscribed around two crucial documents
released by the European Commission: the pioneering Communication A Digital Agenda for Europe,
COM(2010)245 final, and the recent Communication A Strong Social Europe for Just Transitions, COM(2020)14
final.
2 See Countouris N., De Stefano V., New Trade Union Strategies for New Forms of Employment, ETUC, Brussels,

2019.
3 See among the earliest contributions Valenduc G., Vendramin P., Work in the Digital Economy: Sorting the Old

from the New, ETUI Working paper 2016.03, ETUI, Brussels, 2016.
4 Smisman S., The European Social Dialogue in the Shadow of Hierarchy, in Journal of Public Policy, 2008, 28(1), 161 –

180.
5 In fact, the Agreement has been implemented in some Member States, like Italy, by a simple translation of

the European text and only minor adaptations.
6 Among the most recent autonomous agreements, mention can be made of: Framework agreement on Active ageing

and an inter-generational approach, signed on 8 March 2017; Framework agreement on Inclusive labour markets, signed on
25 March 2010; Framework agreement on Harassment and violence at work, signed on 26 April 2007; Framework
agreement on work-related stress, signed on 8 October 2004.

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    As it is well known, the effectiveness of the European social dialogue has always been
exposed to the enduring tension between the autonomy granted by social partners under
article 152 TFEU and the prerogatives enjoyed by the Commission in the EU legislative
process.7 The most recent examples of this struggle are the famous Hairdresses and EPSU
cases8, both dealing with the refusal opposed by the Commission to start the procedure for
a statutory implementation of the signed agreements (the latter is currently awaiting a
decision by the CJEU).9
    Against such background, one may argue whether the FAD may be presented as an
alternative strategy for the autonomy of social partners to express its potential at the EU
level. A “subsidiary” and “reflexive” strategy, based on triggering and enhancing the
regulatory skills of sectoral and local players on matters that are unfit to hard and general
solutions.
    However, it is not the intention of this contribution to discuss the limits of the principle
of social partners’ autonomy in EU law or to alleviate the frustration that the
acknowledgment of those limits may generate. Especially because it is impossible to separate
the FAD from the general EU policy framework on the digitalization of employment
relations.
    In fact, the involvement of social partners is constantly invoked in the documents released
by the European institutions that address the challenges of the technological innovation. For
instance, the Commission’s White Paper on Artificial Intelligence – A European approach to excellence
and trust10 includes social partners among the stakeholders that will be part of the “European
governance structure on AI”, a body composed of EU-level and national members that
“should be consulted on the implementation and the further development” of the
cooperation strategy in the field. In a similar vein, the Commission points out in the same
document that “The involvement of social partners will be a crucial factor in ensuring a
human-centred approach to AI at work”. Another example is the Charter enclosed to the Pact
for Skills launched by the Commission in the context of the European Skills Agenda for
Sustainable Competitiveness, Social Fairness and Resilience.11 The Charter highlights, in its preamble,
the “importance of social dialogue in contributing to successful upskilling and reskilling in
Europe”.
    Conversely, the FAD makes reference to several EU instruments that social partners
should comply with in the implementation of the agreement, such as the General Data
Protection regulation (GDPR) and the rules on working time and telework. Furthermore, it
recalls the enabling role that the EU and national governments have to play, “by ensuring
that the framework conditions allow and support employees and workers to grasp the


7 Lo Faro A., Art. 152 TFEU, in Ales E., Bell M., Deinert O., Robin-Olivier S. (eds.), International and European
Labour Law. Article-by-Article Commentary, Nomos, Baden-Baden, 2018, 150 – 155; Schieck D., Autonomous
Collective Agreements as a Regulatory Device in European Labour Law: How to Read Article 139 EC, Industrial Law Journal,
2005, 34(1), 23 – 56.
8 See Dorssemont F., Lörcher K., Schmitt M., On the Duty to Implement European Framework Agreements: Lessons to

be Learned from the Hairdressers Case, in Industrial Law Journal, 2019, 48(4), 571 – 603.
9 General Court, T-310/18, EPSU and Goudriaan v Commission, ECLI:EU:T:2019:757.
10 European Commission, White Paper On Artificial Intelligence - A European approach to excellence and trust,

COM(2020) 65 final, Brussels, 19 February 2020
11 European Commission, Communication European Skills Agenda for Sustainable Competitiveness, Social Fairness and

Resilience, Brussels, 1 July 2020.

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                                                                                           Section: Miscellaneous


opportunities”12 brought about by digitalization, while leaving the private actors enough
space to design appropriate solutions for their specific interests and needs.
    Thus, in spite of its purely autonomous nature, this new European social dialogue
initiative is fully embedded into a broader system of policies and institutions, and must
therefore be interpreted and assessed in the light of such broader system. Starting from this
assumption, this article will seek to investigate the added value of the agreement, finding
whether the social partners have been able to introduce new elements and new tools to
achieve a “mutually beneficial”13 transition for employers and workers and a “human
oriented approach to integration of digital technology in the world of work”14: the
overarching goals stated in the FAD that resonate in the purposes claimed by the European
policy makers.15
    The article will proceed as follows. The next section will illustrate the general structure of
the agreement and its guiding principles. From this analysis it will be possible to infer the
meaning attached by the social partners to the technological revolution and the methodology
that they commit themselves to follow when implementing new technologies in the work
processes. The FAD defines the digital transformation as a “multifaceted topic”16, and
focuses its attention on four specific facets: hence the third section will address the measures
devised in the agreement to drive the regulation of these four elements towards the general
objectives pursued by the signatory parties. Such measures will be read in parallel with a
sample of EU policy initiatives, to point out differences and complementarities. The fourth
section will provide some conclusive remarks, focusing on the perspectives related to the
implementation of the agreement and its possible effects. The main question in this regard
concerns the capacity of social partners at the different levels to align with the model
proposed by the FAD to “govern” the digitalisation, and is strictly linked with the question
of which industrial relations tools and arrangements can ensure the most effective
implementation of the principles laid down by the agreement. In this regard the agreement
itself provides some indications, behind its apparent neutrality.


2. The design and the methodological approach.

   The FAD is inspired by a partnership approach, in line with the assumption that a
successful integration of digital technologies at the workplace can (and should) be achieved
by a “consensual transition”.17 The landing place of such transition, in the view of the
signatory parties, is a “win-win” setting that will allow workers and employers to reap the

12 Framework Agreement on Digitalisation, 13.
13 Framework Agreement on Digitalisation, 3.
14 Framework Agreement on Digitalisation, 4.
15 In the words of the Communication A Strong Social Europe for Just Transitions (European Commission, nt. (2),

9): “Robots as well as digital tools can take over dangerous and monotonous tasks from humans. Still, change
can also generate new concerns. New work patterns - constant connectivity, increased online and mobile work,
human-machine interfaces, workers’ monitoring, recruitment and management by algorithms to mention just
a few – can bring increased productivity that is vital to overall improvements in living standards, but should
develop in ways that avoid new patterns of discrimination or exclusion or new risks to workers’ physical and
mental health”.
16 Framework Agreement on Digitalisation, 3.
17 Framework Agreement on Digitalisation, 6.



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opportunities and minimize the risks attached to the technological change, and “ensure the
best possible outcome”.
    Besides the Voltairean accent, this concept reflects the growing consensus towards a non-
deterministic approach to technology. Behind lays the idea that technology is neutral in itself,
and that its impact on employment relations (and society at large) is not predetermined but
depends on the implementing (hence regulatory) choices made by the institutions and the
societal players.
    In a similar vein, European policy makers have repeatedly advocated the benefits of
regulating the digital transformation. The Commission’s White Paper on Artificial Intelligence has
sketched out the guidelines of a regulatory framework of AI aimed at building an “ecosystem
of trust”.18 Similarly, the Council of the European Union, in its Conclusions on Shaping
Europe’s Digital Future19 invited the Commission to put forward concrete proposals “which
follow a risk-based, proportionate and, if necessary, regulatory approach for artificial
intelligence”.
    The rules provided for by the FAD are phrased in a very general manner, as it was noted
above. Four particular issues are addressed in the agreement: digital skills and securing
employment; modalities of connecting and disconnecting; artificial intelligence and
guaranteeing the human in control principle; respect of human dignity and surveillance. Each
issue is dealt with according to one recurring pattern: first, the signatory parties state their
common understanding and the conceptual coordinates (a sort of “state-of-the-art”), the
respective interests and the goals that should be achieved; second, the list of measures that
could be enacted is designated. Such measures are not exhaustive, as can be inferred from
the wording of the text, which introduces the list with the phrase: “Measures to be considered
include”. Besides their merely optional and illustrative value, the measures are not
accompanied by any indication about the order of priority to be followed in their
implementation.
    This author has maintained elsewhere20 that regulatory initiatives about work and new
technologies should address power issues, and particularly the risk that digitalization may
(blatantly or disguisedly) facilitate a shift of power to the detriment of workers. In this sense,
the loose normative value of these provisions may be a source of disappointment.
    Nevertheless, in the case of the FAD such vagueness comes as the result of a specific
methodological option, which places a major emphasis on the procedure used for the
integration of digital technologies in the work processes, leaving the substantive
arrangements in the background. This choice is not only inspired by the spirit of cooperation
that characterizes the FAD. It is also explained by the necessity to adapt the implementing
solutions to a manifold range of peculiar and variable conditions, such as the size of the
enterprise, the sector and the different jobs.
    Therefore, the procedure is the main distinctive character of the agreement, and real
element on which the ability of the social partners to coordinate and exert an influence at the

18 European Commission, nt. (10), 8.
19 Council of the European Union, Shaping Europe’s Digital Future - Council Conclusions, Brussels, 9 June 2020,
8098/1/20, 10.
20 Senatori I., Regulating the Employment Relationship in the Organization 4.0: Between Social Justice and Economic Efficiency,

in Perulli A., Treu T. (eds.), The Future of Work, Kluwer Law International, Alphen aan den Rijn, forthcoming
2021, 187 – 206.

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EU level on the transformation of work (in other words, the effectiveness of their action)
should be assessed. As the FAD puts it, “the process steps would remain identical”, whereas
“the process should be tailored to different national, sectoral and/or enterprise situations
and industrial relations systems”.21
   The process devised by the FAD has work organization as its main object, and is
structured in a circular way. Its five stages identify the different pivotal moments related to
the introduction of digital technologies in the organization:

         •    joint exploration/preparation/underpinning (consisting in exploring
              opportunities and risks of digitalization and discussing their impact at the
              workplace);
         •    joint mapping/regular assessment/analysis (a mapping exercise looking into the
              topic areas in terms of benefits, opportunities and risks);
         •    joint overview of situation and adoption of strategies of digital transformation
              (represents the outcome of the former stages and leads to agreeing on digital
              strategies and setting goals for the enterprise);
         •    adoption of appropriate measures/actions (marks the shift to the concrete launch
              of the strategy, encompassing activities like priority setting, timing, clarification of
              roles and responsibilities of management, workers and their representatives,
              allocation of resources);
         •    regular joint monitoring/follow-up, learning, evaluation (assessment of the
              effectiveness of the action and identification of further initiatives to be
              undertaken).

   The involvement of the workers’ representatives in every stage of the process is reinforced
by the express request to provide them with “such facilities and information as necessary to
effectively engage in the different stages”.22 Although the agreement makes it clear that the
role and responsibilities of different actors shall be respected, such a “mainstreaming”
operation indicates, at least theoretically, the intention to improve the balance of power
between workers and management in decisions concerning work organization and the
management of change. While the effectiveness of this strategy can’t be taken for granted, it
represents a step forward insofar as it tackles a major critical point about the implementation
of digital technologies in the work context. The fact that, as organizational theory has shown,
the involvement of workers normally takes place only at the last and lowest level, i.e. the use
of technologies once they have been put in place, and doesn’t reach out to the previous and
more important phases of design and adoption, where the real strategic decisions are made.23


21 Framework Agreement on Digitalisation, 3.
22 Framework Agreement on Digitalisation, 7.
23 See Masino G., Industria 4.0 tra passato e futuro, in Salento A. (ed.), Industria 4.0: Oltre il determinismo tecnologico,

TAO Digital Library, Bologna, 2018, 23. Among the labour law contributions that have addressed the issue:
De Stefano V., “Negotiating the algorithm”: Automation, artificial intelligence and labour protection, International Labour
Office, Employment Policy Department, Working Paper No. 246, Geneva, 2018; Armaroli I., Dagnino E., A
Seat at the Table: Negotiating Data Processing in the Workplace, in Comparative Labour Law and Policy Journal, 2020,
41(1), 173 – 195.


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   According to the complex scheme designed by the FAD, the circular process embraces
four dimensions (or “topics”, as the agreement names them): work content and skills;
working conditions related to health, safety and wellbeing; terms and conditions of
employment linked to time patterns, work-life balance and evaluation mechanisms; work (i.e.
interpersonal) relations, like social interactions between workers and between workers and
managers, which can have an impact on the performance and the wellbeing of the workers.
These dimensions, in turn, crosscut the four specific issues mentioned above: skills,
disconnection, AI and surveillance.
   This scheme represents a significant advancement in cultural terms, and provides a
relevant operational guidance for the actors engaged in the process. In fact, it acknowledges
the inherent bonds between different forms of digitalization and the dynamic character of
their implementation, as well as the manifold consequences that the introduction of a
technological innovation in the organization may entail for the interests of workers.
   For instance, fast-speed digital communications may enable new remote work
arrangements that can improve work-life balance and the wellbeing of workers, but at the
same time can increase the risks related to an enhanced surveillance and pave the way for
more intrusive and opaque methods to assess the work performance. Similarly, keeping
professional skills at pace with technology is relevant not only to preserve employability, but
also to allow workers to govern digitalization and protect themselves from its downsides: for
instance, to avoid (or recognize) the danger of a technological discrimination or to exert the
right to disconnect.
   Against such background, any static and fragmented approach would be short-sighted
and would bear a high risk of ineffectiveness. For this reason, the FAD points out that all
the dimensions and issues have to be discussed and taken into account in the different stages
of the process.
   In the same line of thinking, the European Parliament in its recent resolution on a
Framework of ethical aspects of artificial intelligence, robotics and related technologies 24 highlighted “the
need for competence development through training and education for workers and their
representatives with regard to AI in the workplace to better understand the implications of
AI solutions”.
   The FAD refers for its implementation to the procedures and practices specific to each
Member State, in line with the tradition of the EU regulatory instruments in the field of
industrial relations. Consistently, it stipulates that the provisions referring to workers’
representatives in the agreement shall recognize the prerogatives of trade union
representatives in accordance with national laws and practices. However, this apparent
neutrality can’t completely hide the circumstance that certain practices and instruments seem
better aligned than others to the methodological principles stated in the agreement. This
issue will be specifically addressed in Section 4 of this article.
   Another reference to national definitions is made as far as the subjective scope of the
agreement is concerned. In fact, the FAD covers all workers and employers, in the private
and public sectors alike, including the activities using online platform, but only in the
framework of an employment relationship as defined nationally.

24 European Parliament, Resolution with recommendations to the Commission on a framework of ethical aspects of artificial
intelligence, robotics and related technologies, (2020/2012(INL)) P9_TA(2020)0275, 20 October 2020.

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    This provision is at odds with an emerging strand of EU legislation that incorporates in
its scope the notion of employee elaborated in the case-law of the CJEU, as one of the
elements that must be taken into consideration, together with the national definitions, in the
interpretation of legislative texts. The most recent examples are article 1(2) of the Directive
on transparent and predictable working conditions in the European Union25 and article 2 of
the Proposal for a Directive of the European Parliament and of the Council on adequate
minimum wages in the European Union.26
    It is difficult to figure out the reasons why the signatory parties decided not to open the
agreement to the (although limited) flexibility embodied in the European concept of
employee.27 The adoption of a more flexible concept of flexibility not only would be capable
to attract certain forms of platform workers, but conversely could prevent the risk that jobs
performed with an increased degree of autonomy by virtue of new technologies (such as
some remote work arrangements) will in the long run undergo a problem of reclassification,
which may result in the loss of labour law protections.


3. The specific issues addressed in the agreement.

    In the “substantive” part of the FAD the social partners address the four issues raised by
digitalization that in their opinion deserve the maximum attention, and indicate the measures
that could be considered to tackle them. The opening topic is “Digital skills and securing
employment”.
    The general principles stated in the text are consistent with the narrative recurring in the
many EU policy documents that deal with the same issue.28 Access to training and skills
development are presented as a shared interest as well as a mutual responsibility of employers
and workers, albeit acknowledging the different roles of the two parties. The agreement
recalls “employers’ commitment to use digital technology positively, seeking to improve
innovation and productivity (…) and for the employment security of the workforce and for
better working conditions”. At the same time, it mentions “workers’ commitment to support
the growth and success of the enterprises”.29 The responsibility of the employer is reinforced
by affirming his commitment to pursue an “high road” pathway to innovation, i.e. “to
introduce technology in a way that benefits at the same time employment, productivity and
the work content and improved working conditions”.30
    The detailed coordinates of the strategy on skills development are also familiar with the
general discourse on this matter. The fast-changing technological environment requires a
continuous and multidirectional process of adaptation in the form of “upskilling” and
“reskilling”, which the agreement presents as a commitment of both parties. Employability
is framed into the context of labour market transitions, so that training strategies should aim


25 Directive EU 2019/1152.
26 European Commission, Proposal for a Directive of the European Parliament and of the Council on Adequate Minimum
Wages in the European Union, COM(2020) 682 final.
27 See Menegatti E., The Evolving Concept of “worker” in EU law, in Italian Labour Law e-Journal, 2019, 12(1), 71-83.
28 See European Commission, nt. (11).
29 Framework Agreement on Digitalisation, 8.
30 Framework Agreement on Digitalisation, 8.



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at fostering the workers’ mobility within the company as well as towards the external
market.31 This does not rule out, however, the effort required by the FAD to adopt specific
measures to retain workers within the enterprise, such as the redesign of jobs and work
organization and tailored training initiatives to accompany the workers to the new positions.
    The involvement of the social partners in all the stages of the organizational processes
related to skill development is reaffirmed in the agreement. It should take place at all the
appropriate levels and encompass every strategic activity, such as the identification and
regular assessment of training needs, the competence development initiatives, the promotion
of the aptitude to change.
    The list of measures envisaged (in a not exhaustive nor binding manner, as it was noted
above) to translate the general objectives into concrete actions broadly refers to the
instruments (also of a legislative nature) and practices already in force. For instance, the use
of arrangements such as training/sectoral funds and learning accounts is encouraged, and
the employer’s duty to provide paid training during working hours in all the cases he/she
requires workers to participate in training activities linked to the digital transformation of the
enterprise is recalled, in line with the provision of article 13 of the Transparent and
Predictable Working Conditions Directive on Mandatory Training.
    Besides recalling already existing provisions and schemes, the agreement fails to indicate
precise options and more ambitious perspectives to substantiate and enforce the right (and
duty) to training. The impression is that the social partners might have lagged behind the
remarkable body of policy documents produced by the EU institutions on this issue, that
have set a higher target by devising more detailed and advanced solutions. Nevertheless,
given the open character of the measures set out in the agreement, it is possible that those
solutions may be serve as an inspiration for the social partners in the further implementation
of the agreement. Two examples can be made in this respect.
    The first one concerns the portability of individual learning accounts, that the
Commission has expressly envisaged in its recent initiative European Skills Agenda for
Sustainable Competitiveness, Social Fairness and Resilience.32 This mechanism should make it
possible for the worker to withhold his monetary entitlements to training in the transition
from job to job (or from job to unemployment). While the Commission has announced a
specific initiative on this matter, it seems possible for the social partners to autonomously
put in place a similar machinery by contractual means, at least within one single sector.
    The second example is about the perspective, devised by the Commission within the
initiative for a Pact for Skills (part of the broader European Skills Agenda), to set up large scale
partnerships for the establishment of “strategic industrial ecosystems”. Such instrument
would put together all the stakeholders, including social partners, in a given economic
environment (like specific value chains), and enable the participants to pool resources for
projects of common interest like the establishment of inter-company training centres. In this
way it should be possible to enlarge the scope and increase the effectiveness of training
investments, especially in smaller companies and in less advanced districts and territories.
Strategies of this kind may well be accompanied by a mobilization of industrial relations
practices at the correspondent level. This would be consistent with the provisions of the

31   “In enterprises and more broadly between enterprises and sectors”: Framework Agreement on Digitalisation, 9.
32   European Commission, nt. (11).

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FAD, that expressly call upon the involvement of social partners at the appropriate levels in
supporting digital transformation strategies through skill development initiatives.
    The second specific issue addressed by the FAD is “Modalities of connecting and
disconnecting”. The issue is correctly framed into the context of the protection of health and
safety of workers, whereby all the players are called to actively participate in securing the
protection of the working environment “through a system of defined rights, responsibilities
and duties”33, and in this regard the social partners put a particular focus on the prevention
of risks.
    The measures proposed by the social partners to reach these goals encompass a mix of
cultural and normative indications. The latter are indeed very limited, as they merely refer to
the obligation to respect of the existing rules on working time, telework and mobile work
and to the principle that appropriate compensation should be provided for any extra time
worked. Hence the cultural and the organizational concerns tend to prevail, resulting in
several warnings addressed to the management to “create a culture that avoids out of hours
contact”, design organizational objectives in such a way that their achievement “should not
require out of hours connection”, and prevent workers from being blamed for not being
contactable outside working hours.
    The soft approach followed by the FAD seems too weak and ill-equipped to reinforce
the position of the workers against the risk of a collapse of the boundaries between working
time and personal life that the digital transformation has exacerbated.34 Again, the
comparison with concomitant policy initiatives at the EU level may shed a negative light on
the activity of the social partners, but can also point to a possible pathway to enhance the
implementation of the agreement.
    The reference is to the initiative of the European Parliament for a Directive on the right
to disconnect, set to be discussed in the plenary session on 18 January 2021.35 Two elements
are worth mentioning in this regard. First, the definition of the right to disconnect provided
by the Directive proposal is much more precise, and seems capable of granting a broader
coverage of workers’ positions, than the correspondent notion assumed by the FAD. The
former defines disconnection as the right “not to engage in work-related activities or
communications by means of digital tools, directly or indirectly, outside working time”
(article 2(1)), whereas the latter is especially concerned with the fact that the worker should
not be obliged to be contactable outside working hours. Thus, the agreement seems only
interested in protecting workers from outside interferences, whereas the Directive proposal
is more comprehensive as it covers every “off-duty” work activity, included those performed
off-line.
    Second, the European Parliament’s initiative requires the employer to go beyond the
simple cultural effort to set up a “time-friendly” organization. In fact, it stipulates that

33 Framework Agreement on Digitalisation, 10.
34 On the concept of “time porosity” and its implications for labour law see: Genin E., Proposal for a Theoretical
Framework for the Analysis of Time Porosity, in International Journal of Comparative Labour Law and Industrial Relations,
2016, 32(3), 280 – 300; Krause R., “Always-on”: The Collapse of the Work–Life Separation in Recent Developments,
Deficits and Counter-Strategies, in Ales E., Curzi Y., Fabbri T., Rymkevich O., Senatori I., Solinas G. (eds.), Working
in Digital and Smart Organizations. Legal, Economic and Organizational Perspectives on the Digitalization of Labour Relations,
Palgrave Macmillan, Cham, 2018, 223- 248.
35 European Parliament, Committee on Employment and Social Affairs, Draft Report with recommendations to the

Commission on the Right to Disconnect, 2019/2181(INL), 28 July 2020.

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companies must have in place a system of terms and conditions that shall include inter alia:
“practical arrangements for switching off digital tools for work purposes, including any work-
related monitoring or surveillance tools”, that can be derogated only under a rigid and
predetermined set of conditions; “the manner in which employers record working time”;
“psychosocial risk assessments, with regard to the right to disconnect” (article 4 (1) lett. a, b,
c), whereas the employers should inform workers in writing about the applicable
arrangements (art. 7).
    The third issue is “Artificial Intelligence and guaranteeing the human in control principle”.
The “human in control” principle, unanimously advocated by labour law scholars when
referring to the implications of artificial intelligence on employment36, echoes the “human
approach” that underpins the broader European strategy on the economic and social effects
AI, as illustrated in the Commission’s White Paper on Artificial Intelligence – A European approach
to excellence and trust, already mentioned above. The basic idea is that AI systems and solutions
should not jeopardize but “augment human involvement and capacities at work” 37, as well
as ensure “the control of humans over machines”.
    The agreement also mirrors the main coordinates of the Commission’s strategy for a
human-centred AI: trust and risk-based approach.
    The White Paper acknowledges that AI entails the risk of “opaque decision-making,
gender-based or other kinds of discrimination”38; a risk that has been extensively investigated
by labour lawyers39, and that could undermine the trust of citizens and workers towards the
new technologies. The FAD points out three components of a trustworthy AI relevant to
employment relations: it should comply with all applicable laws and regulations, fundamental
rights and non-discrimination rules; it should follow agreed ethical standards that ensure
adherence to EU fundamental and human rights; it should be robust and sustainable from a
technical and societal perspective.
    The risk-based approach is the method identified by the Commission to assess the
proportionality of regulatory interventions on AI. Starting from the assumption that any
regulation should be effective without creating a disproportionate burden, it comes as a result
that the higher the risk, especially from the perspective of safety, consumer rights or
fundamental rights, the more urgent the need for protection of the affected groups or sectors,
the more justified will be the imposed regulation. Against such background, the White Paper
affirms that “the use of AI applications for recruitment processes as well as in situations
impacting workers’ rights would always be considered ‘high-risk’”, given “its significance for
individuals and of the EU acquis addressing employment equality”.40



36 See De Stefano V., nt. (23).
37 Framework Agreement on Digitalisation, 10.
38 European Commission, nt. (10), 1.
39 See Eisenstadt L. F., Employer or Big Brother? Data Analytics and Incursions into Workers’ Personal Lives, in Addabbo

T., Ales E., Curzi Y., Fabbri T., Rymkevich O., Senatori I. (eds.), Performance Appraisal in Modern Employment
Relations. An Interdisciplinary Approach, Palgrave Macmillan, Cham, 2020, 165 - 190; Kullmann M., Artificial
intelligence and Gender Biases in Recruitment and Selection Processes, Discussion paper, The EU Mutual Learning
Programme in Gender Equality, 12-13 November 2020, https://ec.europa.eu/info/publications/artificial-
intelligence-and-gender-biases-recruitment-and-selection-processes-online-seminar-12-13-november-2020_en
(last consulted on 12 December 2020).
40 European Commission, nt. (10), 18.



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Iacopo Senatori                                                                   Italian Labour Law e-Journal
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                                                                                         Section: Miscellaneous


    The FAD translates this general risk-based approach into a number of specific
implementing measures that include: a comprehensive risk assessment focused on the
improvement of safety and the prevention of harm for human physical integrity,
psychological safety, confirmation bias and cognitive fatigue; the transparency and
explicability of AI output, with effective oversight; the protection of workers from bias and
discrimination.
     It has been repeatedly pointed out that the conformity of AI systems to the regulations
enacted for management and control purposes can’t always be made once and for all, since
“certain AI systems evolve and learn from experience, which may require repeated
assessments over the life-time of the AI systems in question”.41 This remark is consistent
with the “circular process” laid down by the FAD, and grants a further argument in favour
of the continuous involvement of social partners in AI-related decisions at the workplace. In
support of this standing, the Committee on Employment and Social Affairs of the European
Parliament, in its Opinion on a framework of ethical aspects of artificial intelligence, robotics and related
technologies42, has recommended that social dialogue should not be bypassed in decisions
concerning the implementation of AI, and workers and their representatives should be
consulted and receive sufficient information right from the start of the decision-making
process.
    If the background of the FAD provisions on AI, in terms of principles and procedural
guidelines, is well coordinated with the broader policy context, when it comes to the contents
of a more normative nature the impression is, once again, that the social partners may have
missed an opportunity to address in depth the problems at stake. Two examples may help
explain this point.
    The first one concerns the measures envisaged for the use of AI in the context of human
resource procedures. The reference is to the mechanisms based on data analytics models and
algorithms that produce automated decisions, which, as the agreement recalls, may be applied
to every employment situation, like recruitment, evaluation, promotion, dismissal and
performance analysis. While the FAD recommends that in those cases the worker should
always be allowed to request for human intervention and/or contest the decision, it does not
take a clear stance on the crucial question whether the right to contest may embody the claim
for a reversal of a decision caused by a wrongful application of AI. This places the agreement
a few steps behind the straightforward position taken by the abovementioned Opinion of the
Committee on Employment and Social Affairs of the European Parliament that “workers
should be duly informed in writing when AI is used in the course of recruitment procedures
and other human resource decisions and how in this case a human review can be requested
in order to have an automated decision reversed”.43
    The second example is about the recommendation that the design of AI systems should
guarantee privacy and dignity of workers and comply with existing law, including the GDPR.
Redundant in itself, as any plain reference to the contractual commitment to abide by the
law, this measure also fails to address the loopholes that the GDPR contains, which may
result in a limitation of workers’ rights in the context of automated decision-making. The

41 European Commission, nt. (10), 23.
42 European Parliament, nt. (24).
43 European Parliament, nt. (24), point 110.



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Iacopo Senatori                                                                                   Italian Labour Law e-Journal
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                                                                                                         Section: Miscellaneous


reference is to article 22 of the GDPR, which affirms the right not to be subject to decisions
based solely on automated processing when such decisions produce legal effects on the data
subject or similarly affect him or her. In fact, an exception to this general rule is provided
when the automated decision in necessary in relation to the performance of a contract.
Whether this exception shall apply in the context of an employment relationship depends on
how the “necessity” requirement is interpreted, and although labour lawyers have
convincingly advocated a strict interpretation, implying that the automated decision should
be prohibited whenever a less intrusive means to achieve the same goal is available44, yet the
situation is not completely exempt from risks and the same authors have emphasized “the
need for complementary employment specific regulation”.45
    The fourth and last issue, “Respect of human dignity and surveillance”, is closely linked
with the former. Probably this is the reason why it is treated very rapidly, recalling the need
of clear and transparent rules on the processing on data aimed at limiting the risk of intrusive
monitoring and linking the data collection to concrete and personal purposes. The specific
prerogatives of collective players are taken into account by suggesting that workers’
representatives should be enabled to address issues related to privacy protection and
provided with facilities and digital tools, such as digital notice boards, to fulfil their duties in
the digital era (the positioning of the latter provision in this section appears indeed rather
extemporaneous).
    Most importantly, the FAD emphasizes (although without addressing any specific request
to the Member States) the potential of article 88 of the GDPR, that permits to lay down by
law or by collective agreements employment-specific rules to enhance the rights and
freedoms of workers in the context of data processing.


4. Conclusive remarks: the implementing mechanisms and the role of industrial
relations in the digital transformation.

   Like the vast majority of the Social Dialogue initiatives of the same kind, operating under
a “double degree of autonomy” (in the genesis as well as in the implementation), the FAD is
characterized by mild substantive and normative contents. However, if one does not wish to
surrender to classifying the initiative as a mere academic or political exercise by social
partners, the agreement offers an alternative: emphasizing and taking seriously the procedural
approach theorized in the opening pages of the text.
   The approach advocated by the FAD, which incorporates the principle of
“mainstreaming” of industrial relations in decision-making processes related to digitalization,
offers a noteworthy opportunity for social partners at every appropriate level to lift the
regulatory floor while implementing the agreement. The open formulation of the measures
and options laid down in the text permits this outcome, and the initiatives undertaken at the


44 See Otto M., “Workforce Analytics” v Fundamental Rights Protection in the EU in the Age of Big Data, Comparative
Labour Law and Policy Journal, 2019, 40(3), 389 – 403; Todolì-Signes A., Algorithms, artificial intelligence and automated
decisions concerning workers and the risks of discrimination: the necessary collective governance of data protection, in Transfer,
2019, 25(4), 465 – 481.
45 Otto M., nt. (44), 403.



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Iacopo Senatori                                                                             Italian Labour Law e-Journal
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                                                                                                   Section: Miscellaneous


different institutional levels of the EU (Commission, Council, Parliament) can provide useful
policy examples, which could in turn be integrated by national experiences.
   A critical question concerns the identification of the industrial relations practices which
can operate most effectively under this dynamic and procedural framework. As it has been
noted above, the FAD does not take a clear stance in this regard, as it simply refers to
country-specific procedures and tools. Nonetheless, recalling the common binary distinction
between collective bargaining and the involvement of employee representatives, the latter
seems better aligned with the spirit and the general setting of the agreement.
   This conclusion does not come simply as a consequence of the cooperative approach
advocated by the parties of the FAD, nor from the circumstance that collective bargaining
as a regulatory instrument is seldom and marginally mentioned in the text (for instance as a
way to achieve clarity on the use of digital devices and right to disconnect, or to implement
specific rules on privacy pursuant to article 88 GDPR). It also leaves unchallenged the
sensitive issue of the identification of the actors, since the agreement itself expressly
acknowledges that its references to “workers’ representatives” do not rule out the
prerogatives of trade union representatives as stated in national law and practice.
   The main reason why employee involvement seems a more suitable strategy to accompany
the digitalization of work is that, as it was noted above, digitalization is a complex
organizational process involving recurrent decisions that impact on several aspects of the
working conditions in a comprehensive manner. This emphasizes the attitude of involvement
schemes to operate as a flexible and dynamic means to control and influence the managerial
decision-making process “in real time”, and not only by means of a previous set of rules and
limits as collective bargaining is typically apt to do.46
   Against such background, the EU legislative instruments on information and consultation
may represent a solid ground for the design of involvement arrangements capable of
translating the circular process designed by the FAD into concrete practices.
   Firstly, the EU instruments are directly applicable, for the companies that fall into their
subjective scope, in the stages of the circular process that correspond to the matters on which
employees’ representatives have a right to be informed and consulted. In fact, digitalization
certainly represents a case of “decisions likely to lead to substantial changes in work
organization or in contractual relations” (article 4(2)b, Directive n. 2002/14 establishing a
general framework for informing and consulting employees in the European Community)”,
or “substantial changes concerning organization, introduction of new working methods or
production processes” (Annex I, Directive n. 2009/38 on European Works Councils).
   Secondly, they can serve as a pattern for the construction of other mechanisms of
employee involvement, with a peculiar object, operating in specific stages of the work
processes or with regard to specific organizational decisions.47 In those cases, the principles
enshrined in the information and consultation instruments may represent a benchmark to
ensure the effectiveness of the mechanisms, with a particular regard for the time and content


46 The centrality of collective agreements as sources of regulation is this context is advocated by De Stefano V.,
‘Masters and Servers’: Collective Labour Rights and Private Government in the Contemporary World of Work, in International
Journal of Comparative Labour Law and Industrial Relations, 2020, 36(4), 425 – 444.
47 See the proposal elaborated by Todolì-Signes A., nt. (44) for a joint data protection committee, established

on the model of the joint health and safety committees regulated by Directive 89/391.

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Iacopo Senatori                                                                               Italian Labour Law e-Journal
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                                                                                                     Section: Miscellaneous


appropriateness and the existence of adequate sanctions in case of breach of the employer’s
obligations.48
   On the other hand, the emphasis placed on employee involvement does not necessarily
exclude a possible role for collective bargaining. Quite on the contrary, updating the
relationship between the two dimensions of collective action, with a view to exploring new
synergies and interdependencies, represents a necessary means to deal with the contemporary
challenges on the world of work, such as those posed by digitalization.49 In this regard, the
circumstance that information and consultation can lead to contractual relations is expressly
foreseen in the European legislation (the reference is to article 4(2)e, Directive n. 2002/14,
which demands that consultation shall take place “with a view to reaching an agreement”).
This linkage can now be reinforced after the acknowledgement by the Court of Justice that
codetermination rights are protected under article 28 of the Charter of Fundamental Rights
of the EU as an expression of the right to collective bargaining.50 But the cooperation
between employee involvement and collective bargaining may also operate in the opposite
direction, with collective bargaining directly committed to the construction of new
involvement machineries.
   The question whether the social partners will have the strength and the capacity to engage
with the challenges of digitalization remains, however, open. Some authors have maintained
that a “smart mix” between legal intervention and industrial relations practices would be the
most viable option to combine the flexibility granted by private regulation and the
empowerment function played by the law.51 The signatory parties of the FAD have not
openly required a reinforcement of the legal framework to support their action, but they have
recalled the role that EU and national governments have to play by setting up the framework
conditions for workers and employers to lay down appropriate solutions, in line with a
subsidiary approach.
   If the bet launched by the social partners with the soft and procedural strategy brought
about in the agreement will prove capable of triggering an advancement in working
conditions, autonomous social dialogue will score an unexpected point in a period dense of
instability and negative expectations.




48 See Lorber P., Directive 2002/14/EC establishing a general framework for informing and consulting employees in the
European Community, in Ales E., Bell M., Deinert O., Robin-Olivier S. (eds.), International and European Labour
Law. Article-by-Article Commentary, Nomos, Baden-Baden, 2018, 1551 – 1567.
49 See Ales E., Libertà sindacale vs partecipazione? Assenze, presenze e possibilità nello Statuto dei lavoratori, in Rivista

giuridica del lavoro e della previdenza sociale, 2020, (LXX)1, 129 – 147.
50 CJEU C-699/17, Allianz Vorsorgekasse AG, ECLI:EU:C:2019:290.
51 See Potocka-Sionek N., Aloisi A., ‘Festina Lente’: The ILO and EU Agendas on the Digital Transformation of Work,

in International Journal of Comparative Labour Law and Industrial Relations, 37(1), forthcoming. Available at SSRN:
https://ssrn.com/abstract=3694754 or http://dx.doi.org/10.2139/ssrn.3694754.

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Iacopo Senatori                                                                    Italian Labour Law e-Journal
                                                                                          Issue 2, Vol. 13 (2020)
                                                                                          Section: Miscellaneous


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Iacopo Senatori                                                                     Italian Labour Law e-Journal
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Copyright © 2020 Iacopo Senatori. This article is released under a Creative Commons
Attribution 4.0 International License.




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