Jurisprudence & articles
s a result of the sanitary crisis related to Covid-19 and the subsequent restrictive measures taken by the government, teleworking has become an essential instrument for companies who have been encouraged to use this form of organisation, when compatible with their activity.
The exceptional situation we are facing therefore called for a stronger regulation of teleworking in respect to the previous convention on the matter, dated 2006 (1). This convention was not sufficiently in line with the present situation nor the current technologies.
On the 20th October 2020, the social partners (OGBL, LCGB and UEL), signed a new convention in relation to the legal regime of teleworking (The “New Convention”) to better define the legal framework.
This New Convention is concluded for a period of three years from its entry into force
The first main difference with the Convention of 2006 is on the application of the framework.
If the previous Convention was applicable to “all employees covered by the Labour Code with the exclusion of those who have a public law status or similar”, the New Convention excludes the following:
- Posting abroad;
- le secteur du transport au sens large (excluding administration) ;
- sales represetnatives ;
- co-working spaces, in the sense of work which is performed in a satellite office of the company;
- smart-working, in the sense of occasional interventions by smartphone or laptop outside the usual place of work or teleworking.
- all services provided outside the company to customers.
If the definition of teleworking hasn’t changed per se, the New Convention not only abandons the reference to the “employee’s home” leaving a broader possibility to the employee and the execution of the working contract, it also introduces a substantial difference between the “Occasional” teleworking and “Regular” teleworking.
The definition of “Occasional” teleworking in the New Convention is defined as teleworking carried out to deal with unforeseen events or circumstances or when teleworking represents less than 10% on average of the normal annual working time. The rest will be considered “Regular”.
The social partners have agreed that teleworking is neither a right, nor an obligation.
It is voluntary for both parties, in the sense that its implementation must be the result of mutual agreement between the employee and the employer.
The refusal of the employee to accept a proposal of teleworking on behalf of the employer does not in itself constitute a valid reason for the employee’s dismissal.
In respect to this agreement, for occasional teleworking a simple written confirmation on behalf of the employer is sufficient.
For regular teleworking on the other hand, The New Convention stipulates the elements that employer and the employee must agree on. For example the place where the teleworking will take place, the hours and days of the week during which the employee is reachable by the employer, the possible compensations or benefits, the monthly flat rate covering the costs of the employee’s connection and communication.
Another important element stressed by The New Convention is that teleworkers benefit of the same rights and are subject to the same obligations provided for by the applicable legislation and collective agreements as the workers in the workplace of the company.
This also applies to possible benefits the employee is usually entitled to, with the exception of benefits strictly related to the presence of the employee on site. Ie. A parking space, a canteen, or a gym present on site.
It is the employer’s responsibility to take the measures required by law and by the general European Union Data Protection Policy regulations, to ensure data protection, including personal data used and processed by the teleworker for professional purposes.
The employer has the obligation to inform the teleworker about data protection and to train them if necessary.
The employer must inform the teleworker on any restriction on the use of computer equipment or tools such as Internet, e-mails or mobile phone and sanctions in the event of non-compliance.
It is however responsibility of the teleworker to comply with these rules.
In the case of regular teleworking, the employer must provide the necessary equipment and to cover the costs directly related to teleworking. As mentioned above, this may be a monthly flat rate stipulated between the employer and the employee.
Health and Safety
The employer must inform the teleworker of the company’s policy on safety and Health at work.
The teleworker must correctly apply these occupational health and safety policies.
The teleworker is authorized to request an inspection visit from the occupational health service of the company, the company safety and health representative or the inspectorate of labour and mines.
This New Convention has abolished the right of the employer or the inspectorate to access the workplace of the teleworker.
If the previous convention was more flexible in relation to the teleworker’s time management, the New Convention states that the organization of the teleworker’s working time must be equivalent to that of employees on site.
In particular, the parties must agree on the terms and conditions governing the performance of overtime that must align, to the extent possible, with internal company procedures. The employer must also ensure the exceptional nature of overtime carried out by the teleworker and that the right to disconnection is the same as traditional workers.
Transfer or return to the classic working formula.
The New Convention no longer provides for an adaptation period.
Both the employee or the employer may at any moment request a transfer or return to the classic working formula. In the case of regular teleworking, the terms for returning.
The New Convention will enter into force as soon as it is declared of general obligation.
Silvia Gramegna, GIABBANI, legal assistant.