Monograph on the keys to the new Distance Working Law

Today, Wednesday 23 September, Royal Decree-Law 28/2020 regulating remote work has been published.

After several months of negotiation, the Council of Ministers has approved the regulation on telecommuting after reaching an agreement with trade unions and employers. In this article we review the key points of this new regulation published today, the content of which is divided into four main sections.

Chapter I: General Provisions

Firstly, the Royal Decree has sought to establish the definition of remote work as opposed to other productive measures. In this sense, it will be understood as follows:

1. “Remote work”: the way work is organised or work activity is carried out at the worker’s home or at a place chosen by the worker, during all or part of the working day, on a regular basis.
2. “teleworking” means remote work carried out through the exclusive or predominant use of computer, telematic and telecommunication means and systems.
3. “on-site work” means work carried out at the workplace or at a place determined by the enterprise.

Once this distinction has been made, the agreement assumes that remote work must be regulated when it is performed for 30% of the working day in a reference period of three months. In other words, for practical purposes, at least 1.5 days of telework per week must be performed in order to be considered as such.

Then, certain limitations on remote work are established in employment contracts with minors and in internship and training and apprenticeship contracts, with a minimum percentage of fifty per cent of face-to-face service provision to be guaranteed, without prejudice to the telematic development, where appropriate, of the theoretical training linked to the latter.

To conclude this first part, the principles of equal treatment, equal opportunities and non-discrimination are established. For these purposes, persons working remotely shall have the same rights as they would have had if they had provided services at the company’s work centre, except for those rights inherent to the performance of work there in person, and they may not suffer any prejudice to any of their working conditions, including remuneration, job stability, working time, training and professional promotion.

Chapter II: The distance working agreement

Chapter II of Royal Decree-Law 28/2020 deals with the voluntary nature of remote work in such a way that it is established that this will be voluntary for both the worker and the employer, and the agreement must be formalised in writing and expressly signed by both parties.

In this sense, section 1 of Article 7 of the revised text of the Law on Offences and Penalties in the Social Order, approved by Royal Legislative Decree 5/2000, of 4 August, has been amended to read as follows:

“1. Failure to formalise the employment contract in writing, when this requirement is demandable or has been requested by the worker, or failure to formalise the remote work agreement under the terms and with the legally and conventionally established requirements.”

Following on from the above, the Royal Decree-Law underlines the voluntary nature of remote work with the fact that the decision to work remotely from a face-to-face work modality will be reversible for the company and the worker and may be exercised under the terms established in collective bargaining or, failing that, under those set out in the remote work agreement established between the two parties.

It is important to note that the worker’s refusal to work remotely, the exercise of reversibility to face-to-face work and difficulties for the proper development of the remote work activity that are exclusively related to the change from a face-to-face service to another that includes remote work, shall not be grounds for the termination of the employment relationship or the substantial modification of working conditions.

With regard to the formal obligations of the remote work agreement, we have already noted above that the agreement must be made in writing. This agreement may be incorporated into the initial employment contract or made at a later time, but in any case it must be formalised before the telecommuting work begins.

If there is a modification of the conditions established in the remote work agreement, including the percentage of attendance, it must be agreed between the company and the employee, and must also be formalised in writing prior to its application.

Likewise, the company must provide the workers’ legal representatives, within a period of no more than ten days of their formalisation, with a copy of all the remote work agreements that are made and their updates. Subsequently, this copy must be sent to the employment office for registration. Where there is no legal representation of the workers, a basic copy must also be formalised and sent to the employment office.

With regard to the written formalisation of the telecommuting agreement, we reproduce below the minimum mandatory content that must be stipulated by both parties:

1. Inventory of the means, equipment and tools required for the development of the remote work, including consumables and movable elements, as well as the useful life or maximum period for their renewal.
2. A list of the expenses that the worker may incur as a result of providing remote services, as well as the method of quantification of the compensation that the company is obliged to pay and the time and method of payment, which shall correspond, if it exists, to the provision set out in the collective bargaining agreement or collective bargaining agreement that applies.
3. Work schedule of the worker and, within it, where applicable, rules of availability.
4. Percentage and distribution between face-to-face and remote work, if applicable.
5. The company’s work centre to which the telecommuter is assigned and where, if applicable, he/she will carry out the part of the face-to-face working day.
6. Place of telecommuting chosen by the telecommuter to carry out the telecommuting work.
7. Length of notice periods for the exercise of reversibility situations, if applicable.
8. Means of company control of the activity.
9. Procedure to be followed in the event of technical difficulties that prevent the normal performance of remote work.
10. Instructions issued by the company, with the participation of the workers’ legal representatives, on data protection, specifically applicable to remote work.
11. Instructions issued by the company, after informing the workers’ legal representatives, on information security, specifically applicable to remote working.
12. Duration of the telecommuting agreement.

As a final comment on this chapter, we would like to point out that persons who carry out remote work from the beginning of the employment relationship during the whole of their working day, will have priority to occupy jobs that are carried out totally or partially in a face-to-face manner. For this purpose, the company shall inform these remote workers and the legal representatives of the workers of any vacancies that arise.

Chapter III: Rights of telecommuters

We have already mentioned that telecommuters have the same rights and obligations as any other employee working in person. This chapter refers to the right to a professional career for the remote worker, emphasising the right to training – companies must adopt the necessary measures to guarantee effective participation in training actions for remote workers – and the right to professional promotion – remote workers will have the right to professional promotion on the same terms as those who provide services on a face-to-face basis.

Rights with repercussions on working time are also addressed, such as the right to flexible working hours, respecting the compulsory availability times, in the terms established in the agreement on remote working and collective bargaining, or the right to an appropriate time record, which must faithfully reflect the time that the remote worker dedicates to the work activity, without prejudice to the flexible working hours mentioned in this same point.

The most interesting point, and the one that has led to most discussion in the negotiation of the agreement, are the rights relating to the provision and maintenance of resources and the payment and compensation of expenses.

For these purposes, telecommuters will have the right to the provision and adequate maintenance by the company of all the means, equipment and tools necessary for the development of the activity, in accordance with the inventory included in the agreement signed by both parties and with the terms established, where applicable, in the collective bargaining agreement or collective bargaining agreement of application. Similarly, the necessary attention shall be guaranteed in the event of technical difficulties, especially in the case of teleworking.

With regard to the right to payment and compensation of expenses, the Royal Decree-Law specifies that the development of remote work must be paid for or compensated by the company and may not involve the assumption by the worker of expenses related to the equipment, tools and means linked to the development of their work activity.

Another point that until now lacked clear regulations for this method of work and which is now sufficiently regulated is the right to occupational risk prevention in remote work.

Consequently, remote work is subject to the application of preventive regulations in accordance with the provisions of Law 31/1995, of 8 November, on the Prevention of Occupational Risks, and its implementing regulations.

Therefore, the risk assessment and the planning of the preventive activity of remote work must take into account the characteristic risks of this type of work, paying special attention to psychosocial, ergonomic and organisational factors. In particular, the distribution of the working day, availability times and the guarantee of breaks and disconnections during the working day must be taken into account.

The regulation warns that the risk assessment should only cover the area set aside for the provision of services, and should not extend to other areas of the home or the place chosen for remote work.

If the risk assessment of the workplace requires a visit by the person responsible for prevention to the place where, in accordance with the terms of the agreement signed by both parties, the remote work is carried out, a written report must be issued justifying this action, which shall be given to the worker and to the prevention delegates. The aforementioned visit will always require the worker’s permission if it is at home or at the home of a third party.

If such permission is not granted, the preventive activity may be carried out by the company on the basis of the identification of the risks derived from the information obtained from the worker according to the instructions of the prevention service.

To conclude the chapter on rights, reference is made to the section on rights related to the use of digital media.

It includes the right to privacy and data protection in the terms set out in Organic Law 3/2018, of 5 December, on Personal Data Protection and the guarantee of digital rights and directly states, among other points, that the company may not require the installation of programmes or applications on devices owned by the worker, nor the use of these devices in the development of remote work.

It also mentions the right to digital disconnection in the terms established in article 88 of Organic Law 3/2018, of 5 December, recalling the company’s duty to guarantee disconnection by limiting the use of technological means of company communication and work during rest periods, as well as respecting the maximum duration of the working day and any limits and precautions regarding the working day established in the applicable legal or conventional regulations.

Finally, it is stated that the exercise of the collective rights of remote workers shall have the same content and scope as the rest of the workers of the centre to which they are attached.

Chapter IV: Powers of company organisation, management and control in remote work

The last chapter of the Royal Decree is also the shortest. In its first article, it refers to data protection and information security, with employees being required to comply with the instructions established by the company in the framework of data protection legislation, with the prior participation of the legal representatives of the employees, when working remotely. In this respect, employees shall also be obliged to comply with the instructions on information security specifically laid down by the company.

Similarly, workers must comply with the conditions and instructions for use and conservation established in the company in relation to computer equipment or tools, within the terms established, where appropriate, in collective bargaining.

For these purposes, and within the company’ s powers of control, the company may adopt the measures it deems most appropriate for surveillance and control to verify the worker’s compliance with their work obligations and duties, including the use of telematic means.

Additional, Transitional and Final Provisions:

In the section on the provisions of Royal Decree 28/2020 we highlight some with special relevance such as the one referring to remote work in collective bargaining.

Thus, it is determined that collective bargaining agreements may establish, in accordance with the specificity of the specific activity in their field, the identification of jobs and functions that may be carried out through remote work, the conditions for access and development of the work activity through this modality, the maximum duration of remote work, as well as additional content in the remote work agreement and any other issues that may be deemed necessary to regulate.

Among other points, the agreements may also regulate, for example, a minimum working day for remote work, the exercise of reversibility to work on company premises or a lower percentage or reference period than those set out in the Royal Decree-Law.

Another provision also establishes the entry into force of this new law.

In this sense, the new regulation will be fully applicable to employment relationships in force and which were regulated, prior to its publication, by collective bargaining agreements or collective agreements on conditions for the provision of remote services, from the moment they cease to be in force.

In the event that these agreements or arrangements do not provide for a term of duration, this rule shall be fully applicable one year after their publication in the Official State Gazette, unless the signatory parties expressly agree to a longer term, which may be a maximum of three years.

It should be borne in mind that remote work implemented exceptionally in application of Article 5 of Royal Decree-Law 8/2020, of 17 March, or as a consequence of the health containment measures derived from COVID-19, and for as long as these are maintained, the ordinary labour regulations will continue to apply, i.e., due to its exceptional nature, it will not be subject to the new regulation.

Finally, and to end this monograph, we would like to point out that the procedure for the processing of possible claims regarding access, reversion and modification of remote work included in Law 36/2011 of 10 October is also regulated, with the worker having a period of twenty working days, from the time the company notifies them of its refusal or disagreement with the proposal made, to file a claim before the Social Court.

The procedure shall be urgent and preferential treatment shall be given. The hearing shall be scheduled within five days of the date of admission of the application and the judgment shall be handed down within three days. No appeal may be lodged against the judgement, except where a claim for compensation for damages has been lodged which, due to its amount, could give rise to an appeal for reversal, in which case, the ruling shall be enforceable from the time the judgement is handed down.

The AddVANTE Labour Management Department remains at your disposal for further information or to resolve any queries that may arise in relation to this article.