Business

“The new telework law is rushed and extremely comprehensive”

The new remote work regulations, approved by the Council of Ministers on September 22 and agreed with employers and unions, entered into force on Tuesday, with the rules that will govern telework in Spain and whose implementation has been accelerated by the Covid-19 pandemic, because until now it did not have such specific regulations.

Mara Jess Herrera explained this royal decree-law during a new generational dialogue organized by the Observatory of Generations and Talents and presented by its managing partners, the ngeles Alczar and Elena Cascante.

The labor expert questions the new regulations, “drafted in haste” according to her, because by regulating with extreme exhaustiveness “, she suffers from the shortcomings linked to the introduction of regulations which are not sufficiently taken into account and barely verified, which translates into multiple gaps and not a few gaps in the normative text. ”The clearest manifestation of this assertion is the creation of a new legal process to channel some of the allegations that remote working can lead to , in particular the unilateral desire to transform it into face-to-face work.

Mara Jess Herrera joins the most critical voices who point out that knowledge of the practical effect of the regulations contained in the RDL, such as the remote work agreement, reversibility or the much-debated digital disconnection by workers, is incomplete. among other questions. Importantly, the RDL 28/20 rules refer to collective bargaining, that is to say not only to statutory collective agreements, but to any collective agreement. And he stresses that “Therefore, it is essential to follow the path of collective bargaining”.

For all these reasons, Herrera recommends that companies “be cautious”, “take security measures” and not rush to hire workers remotely, either ex novo or by converting work face to face, and to look at existing situations and unilateral trade policies or in previous collective agreements the necessary adaptation to new regulations under the conditions provided for by them.

During the webinar organized by the Generation & Talent Observatory, the expert on the work of Sagardoy Abogados made a critical tour of this RDL which she explained in general terms. Its scope is defined within the framework of the employment relationship regulated in Article 1.1 of the Workers’ Statute and in this regard and of a general nature “it is established as remote work which is provided on a regular basis during a reference period of three months, a minimum of thirty percent of the working day, or the equivalent proportional percentage depending on the duration of the employment contract ”. Therefore, when remote work does not meet these thresholds, the rule will not apply and the extent of coverage that can be given will remain open.

Remote work will be voluntary for the worker and the employer and will require an enforceable formality: the signing of the remote work agreement, which can be part of the initial contract or be executed later.

The decision to work remotely from a face-to-face working modality will be reversible for the company and the worker. This reversibility may be exercised under the conditions set in collective bargaining or, failing that, under those established in the remote work agreement. But this is probably one of the questions that raises the greatest conflict.

The refusal of the worker to work remotely, the exercise of reversibility at face-to-face work and the difficulties for the proper development of the telework activity which are exclusively linked to the change from one face-to-face service to another which includes teleworking will not justify the termination of the employment relationship or the substantial modification of working conditions.

It is also established that the modification of the conditions fixed in the remote work agreement, including the percentage of presence, must be the subject of an agreement between the company and the worker, formalizing it in writing prior to its application.

The development of remote work must be paid or compensated by the company and may not entail the assumption by the worker of expenses related to equipment, tools and resources related to the development of his work activity. It has also been one of the biggest points of contention and continues to be an issue that can cause companies to question its implementation and “shy away” from its application due to rising costs.

The remote work agreement is formally binding and must be drawn up in writing, with a minimum mandatory content in the following terms:

Inventory of the means, equipment and tools necessary for the development of concerted remote work. List of expenses the worker may have as a result of providing remote services, as well as a way to quantify the compensation the company has to pay. Hours of work of the worker and within him, if applicable, rules of availability. Percentage and split between face-to-face and remote work, if applicable. Company work center in which the remote worker is assigned and where, if applicable, to develop the part of the working day in person. Remote workplace chosen by the worker for the development of remote work. Duration of the notice periods for the exercise of reversibility situations, if applicable. Means of business control of the activity. Procedure to be followed in the event of technical difficulties preventing the normal development of remote work. Instructions issued by the company regarding data protection and information security, specifically applicable to remote working. Duration of the distance work contract.

Based on the principle of equal treatment and opportunity and non-discrimination, expressly mentioned, a catalog of remote workers’ rights is also established in the new regulations, including professional promotion and training, digital disconnection, the provision of means, and equipment and its maintenance, and compensation of expenses, flexible hours, recording of hours and prevention of risks.

Priority is also established for those who perform remote work from the start of the employment relationship throughout the working day to take up jobs that are carried out fully or partially in person. “The company will inform those people who work remotely and the legal representation of workers of vacancies of a face-to-face nature that occur,” which is somewhat shocking when the relationship has already arisen as intended specifically to work remotely and probably with this business need, explained Mara Jess Herrera.

Collective agreements or agreements may establish, taking into account the specificity of the specific activity in its field, the identification of jobs and functions that can be performed remotely, the conditions of access and development of the activity. . employment through this modality, the maximum duration of remote work, as well as the additional content of the remote work agreement and any other matter deemed necessary to be regulated. And also collective agreements or agreements can regulate a minimum face-to-face working day at a distance, the exercise of work reversibility in the premises of the company, a percentage or a reference period lower than those established in this decree- royal law. For the purpose of qualifying as regular this modality of execution of the work activity, a percentage of face-to-face work in the training contracts different from that provided for in the same, provided that they are not celebrated with minors , as well as any extraordinary circumstances affecting the right to disconnect.

And it also establishes what Herrera called the “rights of employers” among which stands out the right to require the provision of the worker remotely, in accordance with “normal or agreed” performance standards and all the rights that the legislation of labor grants Employers or businessmen, regardless of the type of work performed by their workers and hold the “power of direction”, of control and of surveillance with regard to the privacy and the dignity of the worker and disciplinary power in the terms established in general legislation, remembering that “the refusal of the worker to work remotely, the exercise of reversibility at face-to-face work and the difficulties for the proper development of the telework activity which are exclusively linked to the transition from a face-to-face service to another which includes remote work, they will not justify the termination of the employment relationship or the substantive modification that of working conditions ”.

After analyzing the Royal Decree Law, Mara Jess Herrera concluded this Dialogue of the Observatory of Generations and Talents by highlighting some of its most critical aspects. According to her, telework and remote work, as a broader genre, “can be an instrument to improve the competitiveness of companies”, however, as the lawyer has already argued and now reaffirms, “a regulatory excess and formalities, the legal definition of an erroneous model and an excessive imposition of means and costs can make this model of service delivery unnecessary ”.

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