Even when this regulation was not conceived for preventive health measures arising from the pandemic, the truth is that we had to run into the issue head-on in order to obtain a regulatory text which perhaps could have been approved long ago. In these times in which guaranteeing the prevention of infection at the same time as maintaining economic activity alive during the pandemic is priority number one for all countries, it has been shown that (i) remote work could be the most effective mechanism to achieve such result, and (ii) a new way forward has arisen. We have, however, arrived with our hands practically empty.
In light of the above, this week the government pulled up its sleeves to finally approve the definitive text of what, until now, was the draft bill of the long-awaited “Law on Remote Working” (Ley del Trabajo a Distancia). There have been, however, certain modifications, eliminations and additions with respect to the former version.
In such text, the difference between trabajo a distancia (regular remote work) and teletrabajo (exclusively remote work) is described, since from the perspective of this regulation, these terms refer to different things. Trabajo a distancia refers to work performed remotely during all or part of a workday on a regular basis (that is, at least 30% of the time in a reference period of three months). Teletrabajo refers to work performed exclusively by remote means.
What about the nature of remote working? Is it obligatory? No worries, it is voluntary. You should, however, keep the following in mind:
- Agreement. Remote work may only occur after a written agreement is signed between the company and the worker prior to initiating the rendering of services remotely. The agreement must include, at least, the minimum contents of the agreement (compensation of expenses; inventory of the means, equipment and tools necessary; percent and distribution between work in person and remote work, etc.).
- Reversal. It is possible to reverse the agreement for either party (from remote work to work in person and vice versa), but always in accordance with what is established in the agreement itself or, if applicable, the collective bargaining agreement which, throughout this regulation, seems to exist as the preferred “wild card” in cases of legal gaps.
- Priority. Those workers who, from the start of their employment relationships, render services remotely during their entire workday shall have priority for occupying work posts that are fully or partially performed in person. Attention, because this means that companies must inform these employees of in-person job openings that arise.
All of this implies that the imposition of remote work by the company, exercising its powers of management and organisation or by virtue of Article 41 of the Workers’ Statute (substantial modification of working conditions for economic, technical, organisational and/or production reasons) is not only unthinkable, but is strictly prohibited, in principle, even in cases of force majeure. This implies a difference from the initial wording of the draft bill and leads to the conclusion that, perhaps, we have not fully learned our lesson.
In terms of concerns such as the compensation of expenses and digital disconnection, note that the regulation appeases such unease. It does so, however, frugally and by turning to its common “wild card”: collective bargaining. In terms of expenses, it is very clear that in cases of work carried out remotely, it is the company which must bear said expenses. However, it does not go into which means must be considered as linked to remote employment activity and, thus, subject to compensation (only two are cited and are less than specific: equipment and tools). In terms of digital disconnection, the wording of Article 18 of the regulation is inflexible: the business owner has the duty to guarantee this right even by way of an absolute limitation of technological means during rest periods, although neither the scope of this provision nor the means and measures to carry it out are established.
But careful with what could be the most controversial aspect of this Royal-Decree Law: workers who render their services remotely will still be entitled to exercise their right to adaptation of the workday foreseen in Article 34.8 of the Workers’ Statute. This is so even though remote work is included in said precept as a measure intended to exercise the worker’s right to work-life balance.
Also please consider the regulatory modifications and extensions that go hand in hand with this regulation, such as, among others, that of Article 7.1 of the Law on Infractions and Penalties in Labour Matters (Ley sobre Infracciones y Sanciones en el Orden Social). The non-compliance with formalisation of an agreement for remote working in the terms legally foreseen, for example, could be considered as a new serious infraction which could imply fines from EUR 626.00 to EUR 6,250.00. That is not to mention the urgent nature and preferential processing given to any judicial proceedings arising from these matters, by virtue of the addition of a new article (138 bis) to the Law Governing the Labour Jurisdiction (Ley Reguladora de la Jurisdicción Social).
There you have it, a regulation whose entry into force is foreseen for mid-October and where, perhaps, certain matters should not be left to the fate of collective bargaining or even to the interpretation of our courts of justice, as they are serious details and have great repercussions for both parties. A crystal-clear, solid regulation should exist that provides sufficient legal security to these matters. This is a regulation that is a step in the right direction, but perhaps it has arrived late. You know the saying, however: better late than never.