Teleworking: A Modern and, Under Conditions, Valuable Form of Work
I. Preamble
(1) Beginning of the 1st millennium BC: The galley appeared. It was mainly propelled with paddles. It was used until the early 19th century. We are all familiar with the (cinematic) images of the dozens of paddlers who, with their coordinated actions, were moving huge, for the time, ships.
All together. Simultaneously. Inside the gallery.
We can be relatively certain that none of the puddlers (: either they were free or slaves) would then think of offering their services remotely.
(2) Early 20th century AD: Henry Ford adopts an innovation at his factory in Detroit in 1914: the production line. The production line simultaneously employs a homogeneous workforce. The work consisted of individual simple and repetitive movements that served mass production.
All together. Simultaneously. Inside the factory.
We can, in this case, also be fairly certain that none of the employees at the Ford plant would even consider offering their services remotely.
(3) March 11, 2020: WHO declares the COVID-19 infection, caused by Coronavirus-2019 SARS-CoV-2, a pandemic. Businesses must continue to operate. Employees should not be at risk. (And they should not cause further dissemination of the virus). Ways for employees to remotely provide their services were sought. There was already the relevant experience. Teleworking is becoming widely known and widely used…
II. The Appearance of Labor Law and the Individual Forms of Labor
Industrialization has undoubtedly been the reason for the emergence of Labor Law. The Fordian model of production (seemingly) played a decisive role in its formation. (That is, the system that was adopted by the aforementioned Henry Ford).
The descriptions in the preamble of the present article is quite inconsistent with what is happening today. Industrial production seems to be rapidly replaced by service industries.
Flexible forms of work are steadily gaining ground over the traditional ‘full-time, part-time employment contract’. Full-time and/or part-time employment contracts are not uncommon. Nor are rotational work employment contracts.
The development of technology is more rapid by the day. New forms of work are introduced as technology evolves. Both employees and businesses are seriously concerned with those new forms. And of course so is the legal world. Outsourcing, networking, crowdsourcing and telecommuting are a reality. This particular reality cannot be ignored. On the contrary, we must utilize it. And now, because of the critical situation we are living in, we are urged to take advantage of it immediately.
III. Coronavirus And Teleworking…
Telework has been at the forefront in recent days. In our country as well.
Legislative Decree of 11 March 2020 introduced “Urgent measures to counter the negative effects of the occurrence of COVID-19 coronavirus and the need to limit its spread”.
The Decree provides that: “The employer may decide that the work provided by an employee at the place of work as per their individual employment contract shall be carried out in accordance with the system of distance work.” In fact, the Decree provides the possibility of extending the time of application of the above extraordinary and provisional measure, “by joint decision of the Ministers of Finance, Labor and Social Affairs and Health” (Article 4 par. 2), after 10.04.2020.
Teleworking is part of the wider context of distance working. Part of it is teleworking at home. This way of working thus achieves the twofold purpose of: (i) The possibility of employees to stay at home. (ii) The continuation of the employment of the employee.
In emergency situations (such as the one we live in because of the coronavirus), teleworking achieves: the continuation of the employee’s job, ensuring the continued operation of the employer-business, the elimination (or at least, reduction) of both employer and employees’ financial loss.
IV. Teleworking And Its Individual Forms.
Teleworking can take the form of full-time or part-time employment. It utilizes IT and communications. It makes it possible for the employee to provide services at a location other than the location of their employer.
Teleworking comes in many forms. Its individual forms are (also) identified by the place the work is offered. Based on this criterion, the following forms of teleworking are encountered, inter alia:
(a) Home-Based Telework: As already mentioned above (under III), due to the emergency caused by the pandemic, this is the most appropriate way of providing work. We would even dare to add: it also is the most common one globally. This is the main and most widely used form of teleworking. It is seen as a development of traditional, home-based work. The teleworker, in this case, uses their home as their base for their work. Their home instead of their employer’s premises.
It is important to note, however, that the employer’s liability for an accident at work is not waived in the case of home-based teleworking. In this context, it is necessary for the employee to obtain a statement on the safety of their work from home. A relevant “Declaration” document should be signed by the employee and submitted to the employer.
(b) Mobile Teleworking: The teleworker does not, in this case, have a fixed working base – e.g. their house. They can be in a number of locations / establishments, which constitute the place where their work is performed (eg the provision by the employee-accountant of corresponding services to the premises of their employee’s [(accounting) firm] clients. This is a widely used form of teleworking in the US. It is already developing in our country.
(c) Telecentres: These are small workstations – premises with appropriate equipment to perform the necessary work. Telecentres are owned by the business-employer. They are smaller holdings, away from the employer’s central location and close to the workers’ residence. At telecentres, more teleworkers have the opportunity to offer their work.
(d) Functional Relocation: This regards whole sections of the business, which are detached from its headquarters. These sections are established separately. However, teleworkers have direct access to the company’s systems. They show a significant resemblance to telecentres. Their main difference, however, is the fact that telecentres can concern employees from different parts of the business. On the other hand, functional relocation relates to the relocation of an entire division (or entire divisions) of a business and to all employees of that division. For example, the Customer Service Department of a business can be functionally relocated. It is not uncommon for this department to be located at a place outside of the businesses headquarters.
(e) Telecottages: This form first appeared in the Scandinavian countries. Telecottages resemble telecentres. However, they do differ on an essential point. Teleworking sites are owned by local communities and not by a business, thus providing public access to computers. Their broader purpose is to educate residents of remote regions.
V. Advantages of Teleworking
There is no questions on the importance and positive effects of teleworking.
In times of crisis, such as the present one, the positive effects abound. Indicatively: for public health, for the economy and, of course, for business. But even under normal circumstanses, teleworking undoubtedly offers a multitude of advantages. These benefits apply to the employee, the employer, and even the community as a whole. In a nutshell:
(a) For the Employee: Teleworking helps employees organize their own working time. Protect their personal health. Save time and cost of moving to (and from) their workplace. It is an opportunity for people with serious family responsibilities or with health problems to (re)integrate into the labor market. It is also an important weapon for the (re)integration into the labor market of people with disabilities. In addition: for the removal of discrimination against them.
(b) For the employer: Teleworking is an important tool for reducing the cost of the business. In particular, the costs relating to the establishment and maintenance of the necessary facilities. Further, the employer, through teleworking, is expanding the number of its eligible employees. Their place of residence is no hindrance to teleworking. Also: absenteeism is not uncommon in the context of (regular) employment. Some of these are linked to objective reasons (eg strikes on public transport or mild illness). Such difficulties in teleworking do not constitute a reason for not providing work. The employer can also look forward to increased employee productivity as work is provided in the familiar environment of their home.
(c) For the community: Reducing employees’ mobility clearly has an environmental impact. In addition, teleworking can contribute to the development of remote areas. Urbanization for professional reasons is, of course, reduced through teleworking. Lastly: it protects public health.
VI. Cons of Teleworking
Teleworking does not, of course, have only advantages. Some of its disadvantages are:
(a) For the Employee: When the place of residence is the same as that of the workplace, the teleworker is, in principle, isolated from their colleagues. And, more broadly, from the community. Their professional life strongly interferes with their private life, as the relevant boundaries are broken. Also: the teleworker is (potentially) on a permanent basis available to their employer. The potential for collective organization and action of teleworkers is subsiding.
(b) For the Employer: When work is not provided at the employer’s premises, the employer loses significant control. The ability to monitor employees is limited to the result of their work. Also: business data, which the teleworker needs to use, is disseminated outside the secure, internal, business networks. Along with whichever risks this entails. Finally, the employer is obliged to support technical equipment in an indefinitely wide geographic scope.
VII. The Legal Status of Telecommunication
One would expect that there would be comprehensive legislation on teleworking. However, this is not the case. The relevant legislation is incomplete.
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The EU provision for telework: The signing of a framework agreement
(a) European countries, attempting to adapt to developments, signed on 16.07.2002 a Framework Agreement on telework. This agreement sought to close the legislative gap for this type of work. Also, the (relative) modernization of labor law. This is because teleworking had already been evaluated as a means of modernizing labor. The purpose of this Framework Agreement was to reconcile the private and professional lives of teleworkers. Providing greater autonomy in their work.
However, the Framework Agreement on telework did not take the form of a Directive. Its implementation has been left to the initiative of each social partner, to the choices, procedures and specific practices of each country. Our country chose not to abstain. This European Framework Agreement was incorporated into the Greek legal order as an annex to the National General Collective Labor Agreement dated 12.04.2006.
(b) A definition of teleworking was included by the social partners in the provisions of the Framework Agreement. A rather wide one (not that this is bad)! According to this definition, “Telework is a form of organising and/or performing work, using information technology, in the context of an employment contract/relationship, where work, which could also be performed at the employers’ premises, is carried out away from those premises on a regular basis” (Article 2). It is clear that teleworking is accepted as an employment contract.
The member-states wanted to point out the voluntary nature of teleworking (Article 3). This contract may be concluded (at the beginning or at a later time of the employment relationship) only on a voluntary basis. And this, after the necessary information on how the work will be executed is first provided, in writing, to the teleworker.
(c) The above Framework Agreement contains, in addition, provisions relating to:
- Equalizing and safeguarding the rights of teleworkers with those of comparable workers. (Comparable workers among those who work within the premises of the employer-company – Article 4). Also, ensuring equal professional opportunities between the two groups of workers concerned (Article 10).
- Protecting business data. The employer must provide the necessary, relevant, updates to the teleworker. Indicatively, information on restrictions on the use of the Internet, equipment and IT tools. Also on penalties for non-compliance (Article 5).
iii. Protecting employees’ privacy and personal data (Article 6).
- The employer’s obligation to provide, at their own expense, appropriate technical support to the teleworker. The obligation of the teleworker to take care of the equipment provided by the employer (Article 7). Provision of appropriate training in the use of the equipment provided (Article 10).
- Protecting the health and occupational safety of the teleworker (Article 8).
- The autonomy of the teleworker to determine the organization of their working time within the framework of the applicable laws, collective agreements and working regulations of the company concerned (Article 9).
vii. Ensuring that the employer takes measures to avoid the isolation of their staff (Article 9).
viii. Ensuring the collective rights and collective action of teleworkers (Article 11).
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National legislation
(a) The presumption of employment
In our country, legislative reference to teleworking is found in Law 2639/1998. Article 1 of that law is entitled: ‘Special forms of employment’. It states that: ‘The agreement between the employer and the person employed for the provision of services or work for a fixed or indefinite period, especially when relating to job-processing contracts, teleworking, home employment, shall be presumed to conceal a contract of employment, provided that work is provided by the person employer themselves, exclusively or primarily to the same employer for nine (9) consecutive months’.
(b) The independent regulation on teleworking
Teleworking has become a separate type of national legislation, as a form of employment, by Article 5 of Law 3846/2010. The national legislator has attempted to specify some of the provisions of the European Framework Agreement.
As regards the obligation of the employer to inform the employee, it was stipulated that: “When the employer draws up a teleworking contract, they shall be obliged to provide the employee, in writing, with all information relating to the performance of the work within eight (8) days” (duties, remuneration, hours, cost of equipment and cost of repair if damaged by the employer, etc.). In fact, the legislator also made an innovation, stating that “if the contract contains a standby clause, the time limits and deadlines for the employee’s response are set.” (Standby contracts have already been addressed in our previous article).
The legislator acknowledged the difficulties in transitioning from common work to teleworking. It recognized, in this context, the right of withdrawal for both the employee and the employer. It offered a three month adjustment period. It granted both of them the right to return to the previous employment status within that quarter, with a 15-day deadline.
However, the national legislature imposed two more obligations on the employer: i. The obligation to bear any associated costs of the employee (in particular relating to telecommunications) and, in addition, ii. The obligation of written information of the teleworker, within 2 months of the conclusion of the employment contract, of the latter’s representatives. That is, the employer must provide the teleworker with the contact details of those who represent the labor rights of the staff within the company. (This is in order to provide additional safeguards for teleworkers’ union rights).
Latest national legislation referring to teleworking is the very recent Legislative Decree of 11.3.2020 (above under III). This Legislative Decree, while not specifying the content of teleworking, nevertheless highlights its value and usefulness.
VIII. Telework And Employment
For the application of the (protective) provisions of labor legislation on telework, an employment contract is required. Employment-related (traditional) employment theories and related criteria have been developed in the context of the ‘normal work’ regime. Upcoming forms of employment – such as teleworking – could not have be taken into account. The relevant legal provisions in this case are almost inapplicable.
The place, the way, and especially the working time, are de facto and, to a significant degree, decided by the teleworker. The prevailing theory of dependency seems to be waning. The managerial right of the employer seems insufficient (criterion) to classify telework provided as employment.
On the contrary, business risk appears as a safer criterion. In the event that the employer bears the business risk, telework is a form of employment. If the person offering their services bears it, then we would be safe to assume the latter is self-employed. Of course, in this case, the provisions of labor law will not apply.
The lack of adherence to obsolete perceptions is also necessary in this case. It is also necessary to understand developments and adapt Labor Law (as well) to them.
IX. In Conclusion
It is necessary to detach from perceptions that go back three thousand years or more (the case of galley rowers, for example). Even from perceptions of the past hundred years (eg the Fordian model of production).
Developments are fast. We cannot ignore them.
Teleworking offers, as a form of employment, significant opportunities for employees and employers. (Even in a pandemic environment from the COVID-19 infection). In countries of the European Union (and / or abroad), this particular, flexible, form of employment is already booming.
In order to further utilize this institution in our country, concerns and reservations must be removed. Safeguarding the interests of stakeholders (: employee and employer) will help in this regard. And so will the proper application of teleworking.
Adopting an adequate regulatory framework seems to be a necessity.
It must be taken for granted that removing legal uncertainty will help to remove existing rigitness.
In development as well.
Stavros Koumentakis
Senior Partner
Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.