The next day is not tomorrow. It is today. And it’s not, in any way, the same as the one before. The majority of employees can already provide their services remotely to the businesses in which they are employed. And businesses no longer need to (permanently) have an office available to their employees. No one should look for an employee depending on the area or city where their business has offices. Most importantly: not even depending on the country their offices are…
In a rather violent way, most of us understood (?) all of this. The existence, the individual parameters, the advantages but also the disadvantages of telework.
The reason? A pandemic. (The first important, and hopefully the last, of our lives).
The means; Α Legislative Decree.
Did the state need to impose it? Not even slightly! Because (as Lenin already noted): “terror is an instrument of for social hygiene” …
Was telework pre-existing? In what form and to what extent? What is its application today? And what is to happen the “next” day?
Let’s take a closer look at these questions. Questions that, more or less, concern us all.
Teleworking and flexible forms of employment
Teleworking has already proven to be extremely interesting as an institution. And that’s why we’ve already dealt in detail with it in our previous article. We have also expressed an opinion on the future of flexible forms of employment. Telework indeed is a form of flexible employment.
Flexible forms of employment are steadily gaining ground over the traditional “full-time, indefinite employment contract.” It is not uncommon to enter into part-time and / or fixed-term contracts. Nor is it uncommon to conclude rotational employment contracts.
Even if it does not escape our attention, the development of technology is proving to be more and more rapid. New forms of employment are presented, depending on the development of technology. Employees and businesses are working hard. Of course, so does the legal world.
Outsourcing, networking, crowdsourcing and telecommuting are already a reality. This fact cannot be ignored. Instead, we must take advantage of all the new opportunities. And now, because of the critical situation we are living in, we are called to immediately take advantage of them.
Teleworking And Its Individual Forms
Teleworking is the form of work that makes it possible to provide the services of an employee in a place other than that of the business that hired them. It is possible to take the form of full or part-time employment. It always takes advantage of IT and communications.
Teleworking comes in many forms. Its individual forms are determined (among other things) by the place it is offered. Depending on this criterion, the following forms of teleworking are encountered -among other. Forms which, in detail, we analyzed in our previous article and briefly, we mention below:
(a) Home-Based telework: The most common and useful form of it. The teleworker’s house is used as a workplace. This form of teleworking has proven to be the most appropriate way to provide employment in the context of the emergency caused due to the pandemic.
(b) Mobile Teleworking: The teleworker moves to different places / facilities (eg to their employer’s client’s facilities).
(c) Telecentres: These are small units-workplaces properly equipped to perform certain tasks. They belong to the employer. Employees from different parts of the business may be involved.
(d) Functional Relocation: It regards entire departments detached from the business’s headquarters (eg the Customer Service Department).
(e) Telecottages: These are areas of teleworking belonging to local communities. They do not belong to a specific business. Their broader purpose is to educate residents of remote areas.
The Advantages of Teleworking
We already have very recent images and experiences from the implementation of teleworking. As a result, there are not many questions about its importance and positive effects.
Teleworking is part of the broader consept of distance work. Through this, a dual purpose is achieved. The possibility of the employee staying at home (the most common purpose). And, in addition, the uninterrupted continuation of their employment.
In emergencies (such as, for example, the one we live in due to the pandemic) we achieve: the continuation of the offering of the employee’s services, the assurance of the continuation of the operation of the business-employer, the elimination (or, at least, mitigation) of financial loss of both.
In times of crisis, such as the present, the positive effects are greater. Indicatively: in public health, in the economy, of course in businesses as well. But even under normal circumstances, teleworking offers, without a doubt, a number of advantages. These benefits apply to the employee, the employer, and even society as a whole. Briefly:
(a) With respect to the employee
Teleworking makes it possible for the employee to organize their working time themselves. And to protect their health. To save time and money on their commute. It creates opportunities for (re)integration into the labor market of those burdened with family obligations, with health problems and / or those with special needs. The employee can provide their work anywhere in their country and / or in the world.
(b) With respect to the employer:
Teleworking is an important tool for reducing the (until recently) inelastic business costs. The employer is no longer “obliged” to create, maintain and offer office spaces and, accordingly, the related facilities. In addition: teleworking expands the number of eligible candidates-employees. Their place of residence / country of residence is no longer a problem. At the same time, absences associated with objective reasons (eg public transport strikes) through teleworking cease to be a reason for non-employment.
(c) As to society as a whole:
Minimizing the commute of employees has a positive effect on the environment and on public health. Teleworking can assist with the development of remote areas and reduce urbanization.
The Disadvantages of Teleworking
Teleworking does not, of course, have only advantages. Some of its disadvantages:
(a) With respect to the employee:
When the place of residence coincides with that of work, the teleworker is basically isolated from their colleagues. And, more broadly, from society as a whole. Their professional life infiltrates their private life, breaking down the relevant boundaries. In addition, they are (potentially) constantly available to their employer. While at the same time, their potential competitors can live in all parts of the world …
(b) With respect to the employer:
The ability to control the teleworker is basically limited to the result of their work. The employer bears(?) the obligation to support technical equipment in an indefinitely large geographical area. Lastly: the data of the business, which it is necessary for the teleworker to use, is disseminated outside the secure, internal, networks of the business. With all the dangers this entails.
It should be noted here that the Personal Data Protection Authority has already recommended that certain measures be taken during teleworking. These measures include: (a) Internet access, (b) the use of e-mail applications / messaging, (c) the use of terminals / storage devices, (d) teleconferencing. We have mentioned the relevant concerns in our relevant articles (: Teleworking and Personal Data)
Teleworking-Yesterday
Absolutely no one would even consider (even two decades ago) the possibility of an employee providing their services remotely. In recent years, teleworking has begun to gain momentum, slowly at the beginning and more rapidly as time passed, on a global level. The rates of its adoption have not been at all similar in our country.
However, March 11, 2020, was a milestone: The WHO declared as a pandemic the COVID-19 infection coming from the Coronovirus-2019 SARS-CoV-2. Restrictions on the operation of some businesses, restrictions on travel and, most importantly, fear played a catalytic role in the rapidly wide implementation of teleworking.
Thus, teleworking has come to the fore in the last month.
In our country as well.
In particular: The corresponding legal phramework
One would expect a complete set of regulations for tackling telework. This, however, has never happened before. The relevant legislation was (and unfortunately proved to be) incomplete.
1. The EU’s provision for teleworking: The signing of a framework agreement and its “hesitant” initial adoption in our country.
(a) The European countries, trying to adapt to developments, proceeded on 16.07.2002 to sign a framework agreement for teleworking. This agreement sought to fill the legal gap for this type of work. Also, the (corresponding) modernization of labor law. This is because teleworking has already been assessed as a means of modernizing the organization of work. Through the specific framework agreement, the reconciliation of the private and professional life of the teleworkers was sought. Providing greater autonomy in their work.
However, the framework agreement on teleworking never took the form of a Directive. Its implementation was left to the initiative of individual social partners and to the choices, procedures and special practices of each country.
Our country did not choose to abstain. This European Framework Agreement was incorporated into the Greek legal order as an appendix to the National General Collective Labor Agreement (NGCLA) of 12.04.2006.
(b) In the framework agreement, a definition of teleworking has been included by the social partners. Probably (and not with a negative connotation) a quite wide one!
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 becoming clear that telework is accepted as an employment contract.
The social partners wanted to highlight the voluntary nature of teleworking (Article 3). This contract may be concluded (at the beginning or at a later time of the employment relationship) on a voluntary basis only. 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 shall, in addition, contain 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).
2. National legislation
(a) The presumption of emmployment
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 legislative regulation of telework
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).
The latest national legislation on teleworking, the most recent, as of 11.3.2020, Legislative Decree, which regulates the employer’s right to work remotely. The specific LD (which is discussed, in particular, below), while not specifying the content of teleworking, nevertheless highlights its value and usefulness.
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.
Teleworking – Today
Businesses had to continue, and under the current pandemic, to operate (the widely known, as well as necessary, business continuity). Employees could not be put at risk. (But neither should they become a link in the chain of the spread of the virus). The way for employees to remotely provide their services to employees was sought. The experience already existed. Teleworking became at once widely known and widely used.
The Legislative Decree of 11.3.2020 (Government Gazette vol. A 55 / 11.3.2020) concerned the taking of urgent measures to deal with the adverse effects of the COVID-19 pandemic and the need to limit its dissemination. One of the (many) interesting provisions of it (: article 4 §2) was the possibility it provided to employers to determine (by their own, unilateral, decision) that some of their employees will be subject to the remote work system. Initially until 10.4.2020. Already extended today until 31.5.20.
This LD stipulates that: “The employer may, by its decision, determine that the work provided by the employee in the workplace provided for in the individual contract shall be carried out under the remote work system.” In fact, it provides the possibility of extending the time of application of the above extraordinary and temporary measure, “by joint decision of the Ministers of Finance, Labor and Social Affairs and Health” (article 4 par. 2).
The imposition of this measure seems simple – at a first glance (although the theoretical possibility of an accident in the employee’s home cannot be ruled out and the relevant provisions that the employer must take are necessary).
The issuance of the above, first, from the long series of LDs was followed by the issuance of an executive JMC [12998/232 / 23-3-2020 JMC (Government Gazette B ‘1078 / 28-3-2020)]. According to it (Article 4 §3 of Chapter A2), employers-employers, depending on the NACE Revision 2 classification of their business activity, “may agree with their employees whose employment contracts are suspended and are entitled to special compensation, for the provision of employment via teleworking, only for covering temporary needs of the business”.
The remuneration of (tele-) employees is made by the employer, proportionally, based on their paid gross salary. The amount of remuneration paid for this work may reach the amount of the legal remuneration of each employee, deducting the amount of the special compensation to which they are entitled (Chapter A.2 no. 4 par. 3 of the MD).
The specific employers-employers are obliged to submit, until the first ten days of the following month from the application of this measure, a relevant information to ERGANI.
A few days later, the (long-awaited) decision No. 13564 / Δ1.4770 / 30.3.20 of the Minister of Labor and Social Affairs (Government Gazette vol. B ‘1161 / 3.4.20) was issued, which clarified critical, up for debate until then, issues. One of them: the percentage reduction of those who could be employed by telework to meet the “temporary needs”. It was specifically stated that: “Up to 10% of suspended workers may be used to meet these temporary needs.”
It was also stipulated that: “Employers who make use of the above regulation are obliged for as long as they use the measure to maintain the same number of jobs …”
In fact, the specific employers-employers, “are obliged to declare to ERGANI this temporary telework, before the beginning of its realization“.
But what happens when the employee submits (independently-regardless of the position adopted by their employer) a request for distance work?
Both the specific request and the supporting document should be freely evaluated (as there is no relevant legal provision) by the employer. It will be accepted as long as the relevant conditions are met. These include: (a) teleworking is possible in the specific case and (b) the request is assessed as “reasonable”. And, ultimately, as long as the employer has no (any) other objections
Teleworking-Tomorrow
We mentioned at the beginning of this article: “The next day is not tomorrow. It is today. And it’s not, in any way, the same as before. ”
It would be more accurate to argue that the next day has already begun, since yesterday.
Technology is already intertwined with our daily lives. Let’s also use it in the context of teleworking.
A few decades ago, touch-typing was considered a qualification. Younger people have the right not to even know what a typewriter is. Its image is blurred on minds of the elders…
But today, would an executive, freelancer, or entrepreneur consider not having a laptop? Not being able to use applications for online meetings? Not being able to remotely connect with the (their) business?
In countries of the European Union (and / or outside of it) this specific, flexible form of employment is already enjoying significant prosperity.
For this institution to be further utilized in our country, concerns and reservations should be raised. Ensuring the interests of those involved (: employee and employer) will contribute in this direction. Ensuring the proper functioning of teleworking would do so as well. Clarifying certain critical and important parameters of teleworking (eg equipment maintenance costs, telecommunication costs, labor accident issues) will prove important.
Adequate regulatory framework seems like an insurmountable need.
The German Minister of Labor, positively assessing the results of teleworking during the pandemic, said that he was already working towards the establishment of a (unilateral) right of employees to provide their services by teleworking. This, in fact, regardless of any pandemic!
Our country has begun and will likely continue to encourage teleworking.
The upheavals (and our attitude towards them)
We are facing upheavals that no one can stop. And the sooner we accept it (: businesses, employees, the state), the better. For all of us….
Let’s face it!
For a long time now: Every employee can provide their services anywhere in Greece. And / or in the world.
For a long time now: Every employer can “buy” services from employees anywhere in Greece. And / or in the world.
This is the reality.
Let’s not turn a blind eye!
Remarkable is the explanatory memorandum of the law, where for the first time teleworking was addressed (Law 3846/2010). In this specific explanatory memorandum, it is emphasized that its provisions are aimed “on the one hand in maintaining the existing jobs, and on the other hand in improving the competitiveness of the Greek Economy“.
A decade later we can confirm: The competitiveness of the Greek economy is a one-way street!
Teleworking is one of the tools to achieve it.
One of the tools to achieve growth.
One of the tools to recover.
In a recent webinar (: Coronovirus & Businesess in Crisis: Labor Relations Management) I concluded, among other things, that a pandemic is intertwined in our thinking with disaster. Do we choose to be trapped in it? Can we do something different?
But of course!
Let’s focus on the future! – Not as daydreamers!
Let’s work for the next day – As realists!
Let’s make the crisis an opportunity!
Let’s solve the problem!
It is a given that the future will be better!
Let’s take steps towards that!
The catastrophe we have in front of us, let it become a turning point for each of us!
Stavros Koumentakis
Managing 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.