Public consultation before the development of a regulatory draft on the modification and elaboration of conditions for providing work for others at a distance

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Catherine Le Nevez
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In compliance with the provisions of article 133, paragraph 1, of law no. 39/2015, of 1 October, of the common administrative procedure of public administrations, in relation to article 26, paragraph 2, of law no. 50/1997, of November 27, of the Government, before the preparation of a legislative project on the subject of reference, a public consultation is carried out in order to obtain the opinion of the most representative subjects and organizations potentially affected by future legislation. Any interested parties may participate by submitting their contributions through the website of the Ministry of Labor and Social Economy, "Public participation in regulatory projects", subsection "Prior public consultation", in accordance with the Agreement of the Council of Ministers, of the 30 September 2016, with which the provisions are issued to allow public participation in the regulatory development process through the web portals of the ministerial departments, published with Ordinance PRE / 1590/2016, of 3 October. The public consultation will be open from 6 June 2020 to 22 June 2020 inclusive.

In order to facilitate participation in the public consultation, the following information is provided on the regulatory project:

Context of the standard

  1. Remote work, understood as work carried out outside the usual establishments and centers of the company, and of which teleworking is a subspecies that involves the provision of services with new technologies, has been the subject of both internal and international regulation. community level and international level.

Thus, at EU level, the European Trade Union Confederation (ETUC), the Union of European Confederations of Industry and Business (UNICE)

/ the European Union of Crafts and Small and Medium-sized Enterprises (UNICE / UEAPME) and the European Center for Public Enterprise (CEEP) have signed a framework agreement on telework to give greater security to teleworkers employed in the EU.

The purpose of the agreement was to develop a general framework at European level for the working conditions of teleworkers and to reconcile the needs for flexibility and security common to employers and workers. The agreement guarantees the latter the same global protection as the workers who carry out their activities on the company's premises.

The agreement defines telework as a form of organization and / or performance of work through the use of information technologies, in the context of a contract or employment relationship, in which a job, which could have been carried out even in the premises of the entrepreneur, it is normally carried out outside these premises.

The agreement highlights several key areas in which it is necessary to take into account the peculiarities of teleworking:

  1. The temporary nature of teleworking: teleworking is voluntary for the worker and employer in question. Teleworking can be part of the worker's initial description or it can be voluntarily accepted later. In both cases, the employer provides the teleworker with relevant written information.
  1. Employment conditions: Teleworkers have the same rights as similar workers who carry out their work on company premises. These rights are guaranteed by applicable legislation and collective agreements. Specific agreements may be needed to take into account the peculiarities of teleworking.
  1. Data protection: and area of ​​private life: it is up to the employer to take the necessary measures to ensure the protection of the data used and processed by the teleworker for professional purposes.
  1. Equipment for the activity: in general, the employer must provide, install and maintain the equipment necessary for regular teleworking, unless the teleworker uses his own equipment.
  1. Health and safety: the employer is responsible for the professional health and safety of the teleworker pursuant to Directive 89/391 / EEC and specific directives, national laws and related collective agreements.
  1. Organization of work: in the context of legislation, collective agreements and applicable labor standards, it is the responsibility of the teleworker to manage the organization of his working hours.
  1. Training of teleworkers: Teleworkers have the same access to training and career opportunities as similar workers who carry out their work at the employer's premises and are subject to the same evaluation policies as other workers.
  1. The collective rights of teleworkers: teleworkers have the same collective rights as workers who carry out their work on company premises. Communication with employee representatives should not be hindered.
  1. Likewise, the International Labor Organization has regulated in its Convention 177 and Recommendation 184 home work when it is performed

working at the worker's home or in other places chosen by him other than the employer's work premises for remuneration and in order to produce a product or provide a service that conforms to the employer's specifications.

  1. As part of the Spanish internal legislation, Law 3/2012, of 6 July, on urgent measures for the reform of the labor market, changed the organization of traditional home work to accommodate remote work based on intensive use. of new technologies. The motivation of this law recognizes telework as a particular form of work organization that fits perfectly into the production and economic model that is pursued, favoring the flexibility of companies in the organization of work, increasing job opportunities and optimizing the relationship between working time and personal and family life. According to this modification,

Royal decree-law 6/2019, of 1 March, containing urgent measures to ensure equal treatment and opportunities between women and men in matters of employment and occupation, modified article 34.8 of the Workers' Statute within the scope of an objective global and anticipating the content of Directive 2019/1158 (EU) of the European Parliament and of the Council of 20 June 2019 on the reconciliation between family and professional life of parents and healthcare professionals, which establishes an authentic right to reconciliation between work and family life through the use of flexible forms of work, including remote work formulas

  1. In the organic law 3/2018, of 5 December, on the protection of personal data and the guarantee of digital rights, a set of rights relating to the use of devices in the workplace such as, among others, the right to privacy and use of digital devices in the workplace and the right to digital disconnect.
  1. More recently, article 5 of the Royal Decree Law 8/2020, of March 17, containing extraordinary urgent measures to cope with the economic and social impact of COVID-19, establishes the preferential nature of remote work and the company must take appropriate measures if this is technically and reasonably possible and if the necessary adaptation effort is proportionate. As is clear from the reasons for this regulation and from the Royal Decree Law 15/2020, in the COVID-19 emergency, teleworking constitutes a privileged tool for guaranteeing the continuity of company activity, for guaranteeing containment and protection measures for workers and for continuing to dealing with the needs of reconciliation between work and family life.

Problems that should be solved with the new standard.

Remote work in its classic conception of home work as that carried out outside the usual work center and without the control of the company and linked to specific sectors and geographical areas has been overcome by the reality of a new framework of relationships and the impact of new technologies.

Nowadays, more than working from home, there is remote and flexible work that allows you to carry out work in new environments that do not require the presence of the worker in the workplace.

This virtualization of working relationships disconnects or relocates the worker from a specific place and time, which undoubtedly brings considerable advantages, among others, greater flexibility in the management of working times and breaks; reconciliation of working life. personal and family, reduction of costs in offices and savings on travel costs, productivity, rationalization of timetables; commitment and experience of employees, attraction and retention of talents, job placement of people with reduced mobility and family responsibilities and reduction of absenteeism.

However, it also has possible drawbacks: data protection, security breaches, techno-stress, continuous hours, computer fatigue, permanent digital connectivity, greater isolation from work, loss of corporate identity, deficiencies in the exchange of information between workers in presence and employees, remote workers and transfer to the worker of the costs of the productive activity to the worker without any compensation, among others.

The real impact of these forms of supply or organization of work has been exponentially heightened by the impact of the COVID-19 pandemic, which has revealed their advantages and weaknesses, as well as the need to address their regulation from a legal framework of security, certainty and transparency.

Need and opportunity

The planned rule is necessary to develop and clarify the legal provisions that make it possible to guarantee a safe and sufficient legal regime on these forms of performance and organization of dependent work, taking into account the insufficiency and obsolescence of the current legal regime described in article 13 of the Workers' Statute, as well as the limited validity of article 5 of the royal decree-law 8/2020, of March 17, of extraordinary urgent measures to deal with the economic and social impact of COVID-19 regarding the preferential nature of remote work.

Objective of the standard

The aim is to provide sufficient regulation that responds to different needs, balancing the use of these new forms of subordinate work and the benefits they entail for businesses and workers, on the one hand, and a framework of rights that satisfies, between the other, the principles on its voluntary and reversible nature, the principle of equal treatment in professional conditions, in particular remuneration including compensation of expenses, promotion and professional training, exercise of collective rights, maximum times working hours and minimum rest times, flexible distribution of working hours, as well as preventive aspects fundamentally linked to physical and mental fatigue, the use of data visualization screens and the risks of isolation.

The aim is also to provide certainty to workers and businesses about the use of remote work included in the right to conciliation, including the necessary requirements for a balanced and co-responsible exercise between women and men.

Finally, it is necessary to introduce the precise elements to ensure that remote working and the use of digital devices and other forms of networking do not lead to a lack of protection or a reduction in privacy rights, without prejudice to the forms of corporate control that may be exercised in accordance with the requirements of the LOPD and the ET.

Possible alternative regulatory and non-regulatory solutions.

The non-regulatory alternative is not considered valid without the autonomous or conventional regulation, necessary to establish common budgets of mandatory and general scope, being sufficient.

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