The draft law on distance working

2020-07-06

 

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The draft law on distance working (teleworking) is already on the table. The social forces have in their hands the regulation of this and the rights and guarantees of the workers who will opt for this modality of service provision.

As its explanatory memorandum states, this is a rule whose necessity and timeliness is, at this moment, indisputable.

On the one hand, the boom in technology, which seems to render face-to-face work obsolete, making it easier to reconcile personal and working life, and on the other hand, the current pandemic resulting from COVID-19, has made teleworking one of the main ways of providing services, guaranteeing not only the production and efficiency of work but also prevention against contagion.

In fact, among the benefits that teleworking can have for the company, there is undoubtedly a reduction in fixed costs in infrastructures as it can reduce installations and save space, which in turn will mean reducing the costs of supplies that large and medium sized companies have to bear on a monthly basis, and this even if they have to pay in full or in part, the cost of tools and other services that the teleworker uses from home or the place where he or she provides services.

From an operational point of view, this new formula will reduce absenteeism and improve productivity by reducing the stress of travelling to work, especially in large cities, and the distraction of being in constant contact with colleagues. Companies will value not so much time management, but rather the achievement of objectives.

From the Human Resources point of view, it seems that teleworking will undoubtedly be an asset to attract and retain talent by increasing the work motivation of workers, and more so if it can be used in a flexible way to reconcile work and professional life.

As for the risks or difficulties that teleworking may have and that the new rule will have to regulate are isolation at work, unequal treatment with respect to colleagues who work in person, cyber security, data protection or, as the president of the CEOE, Antonio Garmendi, points out, the decrease in the hiring of Spanish workers as they can count on workers from other countries for the same cost.

In order to distinguish teleworking from distance work, the explanatory memorandum differentiates the two figures, pointing out that, although not all teleworking is distance work, the current circumstances mean that “the boom in distance work has occurred as a result of teleworking, and it is also foreseeable that it is in the area of teleworking that the volume of distance work will continue to grow“.

Although until now distance work was regulated in a lax manner in Article 13 of Royal Legislative Decree 2/2015 of 23 October of the Law on the Statute of Workers, surely due to the scarce use that this type of figure has had until now, at the present time a law is needed that establishes the limits of teleworking in a detailed manner, the rights and obligations of the company and of the workers who opt for this modality and resolve the problems or doubts that are already arising around this figure which, although it has numerous advantages for the company and society, poses numerous challenges that have not yet been resolved.

Among the challenges posed by distance working and that this next law will have to develop are:

  • Working and rest times and especially the right to digital switch-off and time flexibility.

 

  • The control of the working activity of the teleworker respecting his right to privacy, as it should be done in the face work, that is to say, establishing the control mechanisms established by the Constitutional Court, that is to say, the suitability, the necessity and the proportionality.

 

  • That the minimum professional salary regulated by Article 27 of the Workers’ Statute and the professional salaries set by the collective agreements be guaranteed so that the application of the formula for remuneration per unit of work does not result in the requirement for results that cannot be achieved within the time laid down for that purpose, a risk that is particularly high in distance work when there are no persons who carry out in person an activity equivalent to that of the person working at a distance.

 

  • That the company is responsible for the means and expenses linked to the development of distance work, by providing the person working at a distance with all the means necessary for the provision of the work and through the obligation to compensate him/her fully for the expenses, both direct and indirect – the proportional part of the use and consumption expenses incurred by the working person or any other, that he/she may have as a result of the work.

 

  • That the preventive obligations have the same scope for face-to-face work as for distance work, although the company should pay greater attention, both in the evaluation of risks and in the measures to be developed, taking into account the particular conditions involved in distance work: sedentariness and intensive use of display screens, conditions of isolation or the use of digital devices, cyber-bullying, etc.

 

  • Ensure that there is no discrimination against workers who provide remote service in relation to workers who work in a face-to-face manner. In particular, their involvement and active participation in actions with a collective dimension must be guaranteed.

 

  • Ensure the reconciliation of family life and work, taking into account the following aspects:

 

  • That telecommuting is not a way to perpetuate childcare roles or dependent elderly people that mostly fall on women.

 

  • That this law be a mechanism to facilitate the exercise of breastfeeding.

 

  • This law also contemplates the right to work remotely in cases of family force majeure, when the presence of the working person is indispensable, a situation that has not been addressed so far by Spanish legislation, despite the fact that both Directive 96/34, on parental leave, and Directive 2010/18, also on parental leave, and the current Conciliation Directive 2019/1158 (Article 7) establish the obligation for Member States to set up mechanisms to address family force majeure.

 

  • The right of remote workers to have their rights to conciliation respected (including leave and adaptation rights) is also regulated, as has been recognised for workers in the field.

 

This law is structured in four chapters, one transitional provision and four final provisions.

Chapter I establishes the concept of distance work, which is configured around those who carry out distance work in a non-occasional way.

This chapter devotes a specific precept to Equality and Non-Discrimination. On the one hand, this article recognizes the right to equal treatment between those who work at a distance and those who do so in person, which is reiterated in other chapters of the law, such as in the area of collective rights.

Chapter II of the Act regulates the distance working agreement, a document which must contain the essential elements for guaranteeing the rights of distance workers, such as the hours, connection time/availability, compensation mechanisms for expenses or the usual place of provision of services.

It is established that distance work cannot be arranged for the development of internship, training and apprenticeship contracts, as these are contractual modalities that cannot achieve their training and integration objectives in the workplace through the provision of non-attendance services.

A series of priorities are established for access to distance work as opposed to other workers, which correspond to the distance worker who accesses it on the basis of the provisions of Article 34.8 of the Workers’ Statute, to carry out his or her right to breastfeed, or in the case of gender violence.

There is also a right of access to distance work, although without priority over other workers, which is recognized in favor of people when they regularly study for an academic or professional degree.

Chapter III of the Act sets out the rights of persons engaged in distance work, structuring them around the following sections: rights relating to professional careers, rights relating to economic content, rights affecting working time, rights relating to the prevention of occupational hazards, rights relating to the use of digital media and collective rights.

Chapter IV of this law expressly considers the possibility of occasional distance working at the request of the company, as a consequence of business force majeure. The health crisis has shown the need for alternative mechanisms to temporary employment regulation proceedings in the face of serious and unforeseeable situations of force majeure of a temporary nature.

The possibility of occasional distance work due to family force majeure is also established in those cases in which, in relation to certain family members, the presence of the worker is required for their attention and care, with a limit of 60% of the ordinary working day, without the regulation specifying the reference parameter, which, in principle, corresponds to the worker.

The Act’s single transitory provision guarantees that this law may not diminish the recognized rights of workers who provide remote services prior to its entry into force and establishes a maximum period of one month for the signing of the remote working agreement in the case of employment relationships that were already being provided under that modality beforehand.

The first final provision introduces into the text of the Workers’ Statute those modifications that are necessary in accordance with the provisions of this law, specifically in Articles 13, 23.1 a) and 37.8 of said legal regulation.

The second final provision establishes a special judicial procedure, through the introduction of a new article, 138 bis, to Law 36/2011, of 10 October, regulating social jurisdiction, applicable to claims related to access and modifications of distance working and occasional distance working.

The third final provision modifies paragraph 1 of Article 7 of the revised text of the Law on Infractions and Penalties in the Social Order approved by Royal Legislative Decree 5/2000, of 4 August, for the purpose of specifying the infringement referring to failure to comply with the requirements of the distance working agreement.

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