September 26, 2020

The teleworking law excludes public labor personnel and gives more power to companies to monitor




Government, unions and employers will resume negotiations for the regulation of remote work on next September 1 after the holiday break, and they will do so with a new text on the table, sent a few days ago to the social agents, as indicated to Europa Press in sources of the negotiation.

The new draft, to which Europa Press has had access, incorporates some new features. Thus, it makes it clear that the regulation of remote work will not apply to the workforce of Public Administrations, which will be governed by its specific regulations.

At the same time, the text empowers companies to control and monitor that remote workers comply with their tasks, but respecting their “dignity” and taking into account, where appropriate, the real capacity of workers with disabilities to fulfill their obligations and duties.

The previous draft established that companies could exercise their right of control over remote work through the use of telematic means, under the terms provided in the Data Protection Law.

The last text replaces this paragraph with another in which it is specified that the company may adopt “the measures it deems most appropriate of surveillance and control to verify” that the remote worker complies with his obligations and duties, “keeping in their adoption and I apply the consideration due to their dignity ”.

Regarding the non-application of this future regulation to the labor personnel of the Public Administrations, the draft clarifies that, until there is a specific regulation for this group, it will be governed by the provisions of article 13 of the Workers’ Statute. Said article consists of five sections that, in general terms, establish that the Agreement for remote work will be formalized in writing and that the workers of this modality will have the right to receive, as a minimum, the total remuneration established for their professional group and functions; to adequate protection in terms of health and safety, and to professional training for employment, among other aspects.

The rest of the draft hardly suffers any significant changes with respect to the previous text, in which some measures had already been softened that, above all, did not like the businessmen, such as the costs that they would have to bear for remote work, eliminating the reference to direct and indirect costs.

The preliminary draft of the Distance Work Law, which is based on the European agreement on telework, will be applied to labor relations that are carried out at a distance on a regular basis, being understood as regular when, within a reference period of three months, a minimum of 20% of the working day or the equivalent proportional percentage depending on the duration of the contract, is provided under this modality.

The text distinguishes between remote work (work activity from the home or the place chosen by the worker, on a regular basis); telework (distance work carried out exclusively or predominantly by computer or telematic means and systems), and face-to-face work (which is provided at the workplace or in the place chosen by the company).

According to the draft, employees who work remotely will have the same rights as face-to-face and they will not be able to suffer damage to their working conditions, including remuneration, job stability, working time, training and professional promotion.

Remote work will be voluntary for the worker and the employer and will require the signing of an agreement. Be reversible and will not constitute justifying cause for dismissal or of substantial modification of working conditions, the worker’s refusal to carry out his activity at a distance, his lack of adaptation or ineptitude, or the exercise of reversibility (return to the previous work modality).

People who work remotely will have priority to fill positions that are carried out totally or partially in person, so the company must report available vacancies. They will have the right to training in terms equivalent to face-to-face workers; to professional promotion; to digital disconnection; the right to privacy and data protection; to safety and health at work, and to receive from the company the appropriate means to carry out its activity.

According to the preliminary draft, the development of remote work “must be paid for or compensated by the company”, without involving costs for the worker related to related equipment, tools and media to the development of its activity. Collective bargaining or an agreement between the company and its legal representatives will determine the mode of compensation and payment of the aforementioned expenses.

Remote workers will be able to make the established service provision hours more flexible and the time registration system “must faithfully reflect” the work time performed, and must include the start and end time of the day and of the activity segments.

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