The Covid-19 pandemic has transformed a wide range of aspects of everyday life including particularly how we work, and teleworking has, as we all know, played an essential part in preventing the spread of the disease.
Traditionally, teleworking has not been very widespread in Spain, at least according to statistics, but the pandemic has triggered an upsurge. In some cases, the worst labour practices already in existence have been aggravated, revealing the shortcomings of current teleworking legislation.
In view of this, Spain’s ministry of employment and social economics has undertaken a legislative project “to modify and establish the teleworking conditions of employees”.
In this respect, 22 June 2020 was the last day for submitting suggestions for the public consultation regarding the draft of these new regulations, and shortly afterwards, the draft of the Teleworking Law was published.
Legislating is no easy matter when the intention is to pass legislation to provide efficient safeguards for teleworkers, and social partners are already in talks with the ministry.
In this respect, it is important to determine the issues and determining factors that the new legislation must take into account. Listed below is a selection (not exclusive) of ten of the key areas for discussion about teleworking.
1. What should be regarded as teleworking?
There is a considerable difference between what society understands teleworking to be, and what it means or will mean in legal terms. In this respect, the draft teleworking law defines and differentiates between “remote working, teleworking, office working and occasional telecommuting.” The final definition of each of these concepts is particularly important, and also the rights, obligations and guarantees associated with each one.
2. What is the role of collective bargaining?
Collective bargaining must undoubtedly participate in regulating teleworking, but to what extent has yet to be determined. It may be argued that collective bargaining can adapt better to different sectors or businesses. But an increase in its regulatory clout may blur teleworking rights, obligations and guarantees and even water down its effective implementation. Where will the priority lie?
3. Is teleworking merely a mechanism for the family/work balance?
Teleworking may facilitate the family/work balance, but should this be its only “social function”? Depending the rights, obligations and guarantees being regulated, teleworking may end up being extremely feminised and may even help perpetuate the lack of women and men’s co-responsibility for family-, care- and home-related tasks.
Teleworking may end up being extremely feminised and may even help perpetuate the lack of women and men’s co-responsibility for family-, care- and home-related tasks
In addition to its family/work balance function, other aspects of teleworking must also be taken seriously into account such as, for example, helping increase productivity; balancing one’s private life with work; ensuring the on-going provision of services in the event of force majeure; and even some far more generic factors (e.g. the reduction of accidents at work and environmental impact or climate change, ensuring more competition in the same market conditions, or encouraging competiveness and economic efficiency not based on a decline in working conditions).
4. How can changes, reversals and the voluntary nature of teleworking be regulated and implemented?
There is a consensus that teleworking must be voluntary, but how can this be guaranteed? The draft law’s provision for a formal teleworking agreement in writing with certain minimum conditions before starting to work from home may help, and likewise for employees’ representatives to have a copy of this type of agreement and any revision. But is this enough to ensure its real voluntary nature?
Similarly, changes in the nature of teleworking and the percentage of office work (which may rise or fall to even 100%) may become extremely complex in technical and practical terms. What should the legal reasons for these changes be? May they only be instigated by the employee or also by the employer?
5. How can health and equality and non-discrimination be ensured in teleworking?
Health and safety are core factors of teleworking, particularly, but not only, regarding social and psychological hazards. Employers and employees’ representatives must remain particularly vigilant and, above all, do their utmost to assess risks and plan preventive measures.
Therefore, as the draft law so rightly envisages, teleworking must be regarded as a “particularly hazardous” form of employment forbidden to minors. Measures must also be taken to ensure effective digital disconnection and prevent cyberbullying (of a sexual, or sexual orientation or discriminatory or labour nature).
Teleworking must be regarded as a 'particularly hazardous' form of employment forbidden to minors
Teleworking must not, on the other hand, be a second-class job and must ensure conditions on a par with those of office work. Therefore, as envisaged in the draft law, it is essential to ensure equal wages and non-discrimination, amongst other things.
6. How should the use of personal devices for teleworking be regulated?
Traditionally, the employer has been regarded as responsible for providing the resources necessary for work. However, as revealed during the pandemic, employees’ personal devices are now – if they were not already – also used as tools for work. This combined usage known as Bring Your Own Device (BYOD) entails many risks (including cybersecurity issues, breaches of basic and other rights of employees and third parties, and employer's unnust enrichment).
The draft law aims to prohibit employers from “obliging employees to install programmes or applications on devices they own or using them for teleworking”. Is this an impossible goal?
7. How can we ensure that teleworking does not become the "telescreen" predicted by Orwell?
Although office working sometimes involves authoritarian employers, teleworking could become Orwell’s "telescreen" which seriously weakens or breaches the fundamental rights of data protection, privacy, confidential communications and honour.
This is why better legislation is essential in order to govern the extent of employers’ control over teleworkers, either to confirm that they actually do their work, or to avoid the loss or theft of information or data (including those of a sensitive or confidential nature) or to ensure the fundamental rights of employees and third parties.
8. How much freedom should teleworkers have to organise themselves?
One reason why employers may fear teleworking is the loss of control over the organisation of work. Whether or not this fear is justified, teleworking highlights the need to give employees more freedom to organise themselves in order to be productive. But how much more?
On the one hand, one might think that completely flexible working hours with no specified workplace would enable the best family/work balance (providing of course that total working hours are complied with). But this outlook, sometimes described as smart working, could open a veritable Pandora’s box of labour and legislative risks. On the other hand, working hours determined by employees on a legal or de facto basis might have an impact on productivity, the overall organisation of the business itself and the labour and legislative risks assumed by employers themselves. What balance must be struck?
9. What regulations should apply to sharing teleworking costs?
The question of who should cover teleworking costs (e.g. equipment, furniture, electricity, and much more) is and will continue to be an extremely controversial matter of great importance for both employers (who may regard such sharing as a disincentive for teleworking) and employees (worsening of working conditions if they must pay them).
According to certain labour, legal and economic considerations, all the overheads and direct costs of teleworking must be covered by the employer – even in the case of flat-rate services subscribed to by employees – either directly or by reimbursing the employees. This is the approach of the draft law which envisages the complete reimbursement of any overheads or direct costs arising from this type of work. It also envisages that collective bargaining may establish set compensation mechanisms which must, in any case, ensure that such costs are completely reimbursed.
There is no doubt that employers can easily reduce work-related costs (including, amongst many others, electricity and office rental) thanks to teleworking, although employees’ costs may also be reduced (e.g. commuting costs). Similarly, some costs are obviously related to teleworking (e.g. the use of computers) whilst others might be highly debatable (e.g. a percentage of the rent of the employee’s home). Plenty of food for thought.
10. A necessary reinforcement of collective rights in teleworking?
The collective rights and similar rights of teleworkers must not be overlooked: freedom of association; the right to strike; the right to collective bargaining; and the right to take industrial action.
For these purposes, the draft law, directly or indirectly, makes it obligatory for employers to ensure that there are no obstacles to teleworkers exercising their collective rights.
There is risk of teleworking becoming a synonym of the utmost individualisation of labour
Employees’ representatives are called to play a forceful and supervisory role in this respect to avoid the risk of teleworking becoming a synonym of the utmost individualisation of industrial relations.
As outlined above, teleworking involves many legal and labour considerations. Nonetheless, by way of a final comment, it is very important to remember that there is a great difference between the law and its actual observance, and likewise the extrajudicial factors that affect it (e.g. the business culture), and the overall costs that society can make available or is willing to pay to guarantee it. Are we willing to cover the overall costs of really good teleworking?
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