In February 2017, Eurofound and the ILO published the joint report entitled “Working anytime, anywhere: the effects on the world of work”, which analyzed the results of various studies carried out in 15 countries, including Spain, on the effects on teleworking on the working environment, highlighting positive aspects, such as improved work/life balance or greater productivity, as well as negative aspects, such as a tendency to work longer hours or the overlap between work and personal life.
Among other issues, the report repeatedly highlights the need for regulation and legislative development by labor authorities and governments.
Indeed, apart from the European Framework Agreement on Telework and the scant provisions on distance work provided for in article 13 of the Workers’ Statute, we do not currently have implementing regulations that govern in detail the conditions of this form of service provision.
Globalization and advances in technology have enabled telework to become a real technical possibility, within the reach of almost any company; however, there are many issues when it comes to implementing it from the standpoint of legal certainty.
Undoubtedly the most important question marks hanging over telework in relation to control of working hours and resources, data protection and protection of private life, social security or occupational risk prevention all urgently require a regulatory framework but, in the meantime, what can workers and employers do? Let us not forget that telework cannot be understood as an area of activity unrelated to the management powers of the company or its responsibilities and obligations as employer.
The free will of the parties as set out in individual agreements or collective bargaining may be a temporary solution while the much needed legislative framework for teleworking is developed.
In this connection, we should emphasize the key part that collective labor agreements should play, particularly company agreements (given their proximity to the reality of the company in fundamental aspects such as own activity and business organization, the technologies implemented or the specific characteristics of the affected workers, and due to the legitimacy that derives from their nature as a covenant), as instruments that can cater to the specific teleworking needs of workers and employers.
In recent years, we have been seeing an increase in collective labor agreements that contemplate the establishment of telework as a new means of organizing work. However, in the majority of cases, the regulation contemplated in them is still at an embryonic and underdeveloped stage.
Nevertheless, collective bargaining is not the only source of effective regulation: other compatible alternatives should be taken into consideration, such as implementation through protocols for adaptation at the company or regulation through additional clauses in employment contracts.
In this regard, it would be advisable for employers wishing to use this mode of working to provide means to ensure a minimum of legal certainty and security on important issues, such as the conditions to be met by the place of work, company control and monitoring systems, conditions for access to the teleworker’s home, obligations and rights in the areas of training and professional promotion, as well as in the areas of health monitoring and occupational risk prevention, or collective rights of representation. Matters such as the requirements to be met by the teleworker’s work station (minimum working area, lighting conditions, noise, humidity levels, etc.) and the express agreement by the worker to a risk assessment visit previously notified by the employer may also be regulated, all with a view to complying with health & safety and occupational risk prevention legislation, and avoiding potential contingencies.
In short, the implementation of teleworking will affect and is already affecting working conditions and the way we work. Given the current absence of legislation, it is necessary to encourage and promote its regulation using alternative and compatible formulas, such as collective bargaining and company protocols or contractual clauses, measures which, in the meantime, will allow employers and workers some degree of legal certainty and security when it comes to implementing this form of working.
Garrigues Labor and Employment Law Department
