Effective from 13-10-2020 the regulation of telework has been published in the BOE, establishing equal rights with face-to-face workers and the voluntary and reversible nature of the telework agreement. The new regulation does not apply to teleworking situations that have their origin in the containment measures adopted by the COVID-19 health crisis.
DEVELOPMENT. As a result of the agreement between the Government and the social agents, the agreement for the regulation of teleworking is published by RDL 28/2020. The rule will come into force on October 13, but it will not apply to companies that have implemented teleworking as a health containment measure derived from COVID-19. However, companies are obliged to provide their workers with the necessary means to carry out remote work, and to compensate the existing expenses in the manner established through collective bargaining.
The RDL includes the legislative modifications necessary to adapt social legislation to the regulation of distance work (ET art. 13, 23.1 s and 37.8; LISOS art 7.1) and a new article in the LRJS that creates a special judicial procedure applicable to claims related to the right of access, reversion and modification of remote work (LRJS art. 138.bis). The new standard consists of 22 articles, 7 additional provisions, 4 transitory and 14 final. The most prominent notes are the following:
A. Scope of application
It applies to employment relationships for others in which in a reference period of three months, at least 30% of the working day is carried out remotely. Distance work is understood as a form of organization of work activity that, on a regular basis, is provided at the home of the worker or at the place chosen by the latter, during all or part of their working day.
It is telework when the activity is carried out through computer, telematic and telecommunication means and systems. However, through collective bargaining, a lower percentage or reference period can be established than that legally established for the purposes of qualifying remote work as regular.
Teleworking in contracts concluded with minors, in internships and for training and learning is only possible when, by agreement, it is guaranteed that at least 50% of the work is done in person. Collective bargaining may establish a percentage of face-to-face work in training contracts that is different from that provided for in it, provided that they are not held with minors.
It does not apply to workforce at the service of the Public Administrations. (2nd final disposition).
B. Equality and non-discrimination.
Remote workers have the same rights as face-to-face workers. In particular:
a) Right to receive the remuneration and supplements established for face-to-face workers, especially those linked to personal conditions, company results or job characteristics.
b) Not be harmed, especially in terms of working time or remuneration, due to difficulties, techniques or others not attributable to the worker, which could eventually occur, especially in the case of teleworking.
c) Companies must take into account remote workers for the implementation of equality plans, the application of measures against harassment (sexual, because of sex or work) and for the protection of victims of gender violence.
d) They also have the same rights as face-to-face workers in matters of conciliation and joint responsibility, including the right to adapt to the working day
C. Voluntariness
Remote work is voluntary for both the worker and the company. This means that the decision to telecommute is reversible for both. Consequently, remote work cannot be imposed through a modification of the working conditions (ET article 41.1). Likewise, the refusal to work remotely, the exercise of reversibility or the difficulties for the proper development of the remote activity cannot justify the termination of the employment contract or the substantial modification of the working conditions.
D. Distance work agreement
The distance work agreement between the company and the worker must meet the following requirements:
a) It must be formalized in writing prior to the start of the remote work. The agreement can be incorporated into the initial or later employment contract, but in any case a basic copy of it must be delivered to the workers' representatives within 10 days and registered with the employment office. Non-formalization constitutes a serious offense (LISOS art 7.1 redacc RDL 28/2020).
b) Without prejudice to the regulation contained in this regard in collective agreements or agreements (final disposition 1), the minimum mandatory content of the agreement is as follows:
- inventory of the necessary means, equipment and tools, including consumables and furniture elements, as well as the useful life or maximum period for their renewal;
- List of expenses that the worker may have due to the fact of providing services at a distance;
- Form of quantification of the compensation that the company must pay and the time and form to carry it out, which, if any, must be carried out according to the provisions set out in the applicable collective agreement or agreement.
- Working hours of the worker and within it, where appropriate, availability rules.
- Percentage and distribution between face-to-face work and remote work, if applicable.
- Work center of the company to which the remote worker is assigned and where, where appropriate, they will develop the face-to-face part of the working day.
- remote work location chosen by the worker for the development of remote work.
- Notice periods for the exercise of reversibility situations, if applicable.
- means of business control of the activity.
- procedure in the event of technical difficulties that prevent the normal development of remote work.
- instructions on data protection and information security.
- duration of the distance work agreement.
c) It can only be modified by agreement, formalized in writing and prior to its implementation, between the company and the worker. However, by means of a collective agreement or agreement, the mechanisms and criteria by which the face-to-face worker can switch to remote work or vice versa can be established, as well as preferences or the ordering of priorities. In these, the perpetuation of gender roles and stereotypes should be avoided and the promotion of co-responsibility between women and men must be taken into account. In addition, they must be the object of diagnosis and treatment in the equality plan.
E. Rights and duties
The following are described rights of teleworkers.
a) Right to a professional career, which includes both the right to training and professional promotion.
b) Right to the provision and adequate maintenance by the company of all the means, equipment and tools necessary for the development of the activity. Accurate care must also be ensured in the case of technical difficulties, especially in the case of teleworking.
c) Right to payment and compensation of expenses by the company. The worker must not assume the expenses related to the equipment, tools and means related to the development of their work activity. The mechanism for the determination, compensation or payment of these expenses may be established by means of a collective agreement or agreement.
d) Right to flexible hours in accordance with the provisions of the distance work agreement and collective bargaining. However, the mandatory availability times and the regulations on work and rest time must be respected.
e) Right to adequate time registration, which must faithfully reflect the time that the worker who performs remote work dedicates to the work activity.
f) Right to the prevention of occupational risks, which includes a risk assessment in which the characteristic risks of this type of work must be taken into account, especially psychosocial, ergonomic and organizational factors.
g) Right to privacy and data protection. This assumes that the company:
- cannot demand the installation of programs or applications on devices owned by the worker, nor the use of these devices in the development of remote work.
- Must establish criteria for the use of digital devices, respecting in any case the right to privacy in accordance with social practices and legally and constitutionally recognized rights.
By means of a collective agreement or agreement, the use of computer equipment made available to workers by the company for personal reasons can be regulated.
h) Right to digital disconnection outside of working hours For this purpose, the company, after hearing the legal representation of workers, must develop an internal policy in which they must define modalities for exercising the right to disconnect and training and awareness-raising actions for staff on a reasonable use of technological tools to avoid the risk of computer fatigue.
The collective labor agreements or agreements may establish the appropriate measures to guarantee the effective exercise of this right and the adequate organization of the working day so that it is compatible with the guarantee of rest times.
i) Exercise of their rights of a collective nature with the same content and scope as the rest of the workers of the center to which they are attached. For this, the company must provide the workers' representatives with the necessary elements for the development of their representative activity (access to communications and electronic addresses for use in the company and the implementation of the virtual board ...).
Likewise, it must guarantee the possibility that remote workers can participate in activities organized or called by their legal representation or by the rest of the workers in defense of their labor interests, especially in the exercise of the right to vote.
Meanwhile remote workers are required to:
a) Comply with the instructions established by the company in terms of data protection, prior participation of the legal representation of the workers. It includes compliance with the information security instructions specifically set by the company.
b) Comply with the conditions and instructions for use and conservation established in the company in relation to computer equipment or tools, within the terms that, where appropriate, are established in collective bargaining.
In addition, the company can adopt surveillance and control measures to verify compliance by the worker with their obligations and job duties, including the use of telematic means, with due consideration to their dignity. The actual capacity of workers with disabilities must also be taken into account.
Remote work situations prior to 22-09-2020 regulated by collective bargaining agreements or agreements will be regulated by provisions of this standard from the moment they lose their validity and in any case from 23-9-2021 (a year from the publication of RDL 28/2020). The application of this norm cannot suppose to absorb or compensate more beneficial conditions that have already been enjoying. The standard gives a period of 3 months from when it is applicable to adapt or modify individual distance work agreements in force as of 23-9-2020 not derived from collective agreements or agreements. If the remote work situation derives from an individual agreement, the adaptation period ends on 23-12-2020 (3 months from its publication).
