The recent labor law (: Law 4808/2021), brought about a number of amendments to the labor legislation – many of them have also occupied us in our recent articles. It replaces, among others, the current regulation, in place until recently, for teleworking (: no. 5, law 3846/2010). For now we will deal with issues related to the teleworking agreement and its terms. In the next article we will deal with issues related to employee protection, health and safety issues. Also, the (particularly important) right of disconnection.
What is teleworking?
According to the law (: art. 67, law 4808/2021): “teleworking is the remote provision of the employee’s dependent work also with the use of technology, under full-time, part-time, rotational or other form of employment contract, which could also be provided by the employer”.
The voluntary nature
The recent (as well as the older) regulation provides for the basically voluntary nature of teleworking. In this context, an employer-employee agreement is required (art. 67 §2, law 4808/2021).
The teleworking agreement can (and is) verbal. As long as the written form is not required by the type of employment contract (in part-time employment contracts, e.g.). Furthermore, the teleworking agreement may be the subject of both the original agreement between the employer and the employee – upon recruitment or after a subsequent amendment.
However, in the latter case (: modification of an existing employment contract), the question arises as to the existence (or not) of a right of revocation. In contrast to the previous regime, article 67 no longer regulates this right.
The answer to this question depends on whether or not we accept the parallel implementation of the Framework Agreement [: integration into the national legal order (: General National Collective Employment Convention 2006-2007-Appendix B’) of the European Agreement- Framework for Teleworking]. The new provision (: art. 67) seems to be in force along with the Framework Agreement on teleworking. This conclusion is deduced from the letter of the law, which explicitly provides that the new regulation replaces, only, article 5 of law 3846/2010.
Clause 3 of the above Framework Agreement provides that: “If teleworking is not part of the initial job description, the decision to switch to teleworking is revoked by individual and / or collective agreement. Revocation may involve a return to work on the employer’s premises at the request of the employee or employer. The details of this revocation shall be determined by individual and / or collective agreement”.
Based on these data, the teleworking agreement is freely revocable when it is agreed with a later employer-employee agreement. In this case (also) the contractual arrangement of the details of the revocation should therefore be considered safer.
Individual parameters of teleworking (: teleworking hours and ratio of teleworking and work in the employer’s facilities) must, however, be declared to the Information System ERGANI (art. 67 §11).
The unilateral imposition of telework
Despite the essentially voluntary nature of teleworking, it can sometimes be imposed unilaterally. This can exceptionally happen (if the work can be provided remotely) for specific reasons only:
(a) Following a decision by the employer, for reasons of public health protection. A relevant CMO of the co-responsible ministers is required (art. 67 §3 per. Α΄, law 4808/2021).
(b) At the request of the employee, in case of documented risk to their health, which will be avoided if they telework. The diseases, disabilities and illnesses that can document such a risk are expected to be determined through a CMO (art. 67 §3 para. b΄). However, the issuance of the latter is pending. Nonetheless, the employer may, for some reason, disagree with the satisfaction of the employee’s request. The resolution of the relevant dispute will take place by the relevant Labor Inspectorate.
(c) At the request of parents of children up to twelve (12) years of age or caregivers, who are entitled to request, for their convenience, flexible work arrangements, including telework (art. 31). This right has already occupied us in our previous article. There, we have already pointed out that the precondition is the completion of six months of employment (continuously or through successive fixed-term employment contracts), at the same employer. The employer must consider and process any relevant request within a month.
(d) As a temporary measure of protection against an imminent danger to the life or health or safety of an employee from an incident or conduct of violence and harassment. This temporary measure is imposed either by a decision of the employer or following an order, with immediate effect, by the Labor Inspector (the role of the Labor Inspectorate, in general, in cases of violence and harassment have also occupied us in the context of our previous article).
The obligation to notify the terms of telework
The informal, in principle, nature of the telework contract is relativized. This is because there is an obligation for written notification of the terms of telework (art. 67 §5 law 4808/20215). The written notification of the working conditions – in general, concerns an already known obligation of the employer. It stems from the Presidential Decree no. 156/1994 and has occupied us in our previous article). In this case, however, the obligation to notify the terms of teleworking constitutes (according to the explicit provision of Law 4808/2021), an additional obligation of the employer-in relation to what is provided under this Presidential Decree.
This obligation to notify must be fulfilled within 8 days from the start of the telework. It refers to the terms of the employment contract that are modified due to teleworking. These are, for example:
(a) The right to disconnect.
(b) The analysis of the additional costs, which are periodically borne by the teleworker due to the telework.
(c) The equipment necessary for the provision of telework (available to the teleworker or provided by the employer) as well as the procedures for technical support, maintenance and repair of the damage of this equipment.
(d) Any restrictions on the use of IT equipment or tools and penalties in the event of their breach.
(e) Agreement for readiness to provide telework, its time limits and employee response deadlines.
(f) The hygiene and safety conditions of teleworking observed by the teleworker and the procedures for announcing a possible work accident.
(g) The obligation to protect the professional data as well as the personal data of the teleworker and the actions and procedures required for the fulfillment of said obligations.
The notification to the respective employee of the terms of their employment contract, which differ due to telework, can take place in any way. Even via email. Moreover, when these terms do not apply individually to an employee, they may be communicated collectively. In particular, the law provides that these terms may be communicated to interested parties by posting on the company’s intranet or by notifying a relevant business policy.
Individual parameters of teleworking (: teleworking hours and ratio of teleworking and work in the employer’s facilities) must, however, be declared to the ERGANI Information System (art. 67 §11).
The cost of telework
According to the explicit provision of the law, the cost of teleworking is borne by the employer (art. 67 §4 law 4808/2021). This is the total cost of telework [: equipment costs (eg ergonomics or electronic equipment), telecommunications, equipment maintenance, fault repair or equipment replacement].
However, by agreement of the parties, the costs incurred by the employer may be reduced. This happens if it is agreed that the employee will use their personal equipment. Similarly, the cost of repair can be agreed to be borne by the employee, if they use their equipment. Otherwise, the costs of repairing the employee’s equipment are borne, based on the above, by the employer.
The costs of teleworking are explicitly excluded by law from the employee’s salary. On the contrary, the law stipulates that these costs constitute a deductible expense for the employer. Given its specific nature, the cost of teleworking is not subject to tax or fee, nor are insurance contributions due to it. While, although not explicitly provided, this cost, since it does not constitute a salary, is not protected under criminal law, it can be offset and confiscated.
The method of monetary reimbursement of the above mentioned expenses must be defined in the contract or employment relationship of the employee. However, the determination of these costs was not possible until the very recent issuance of the MO which proceeds to determine the above costs.
Specifically, the authorizing provision of article 79 §1 of law 4808/2021 provides that “by decision of the Minister of Labor and Social Affairs the minimum amount of par. 4 of article 67 is determined, in particular based on the frequency and duration of telework, the provision or not of equipment by the employer, the direct coverage of expenses by the employer or not and any relevant details “. However, the issuance of this MO is still pending.
The delegated MO determines the minimum amount of teleworking expenses as follows:
For the use of the home as the workplace, 13 euros.
To cover the cost of communications, 10 euros.
For the maintenance of the equipment, 5 euros.
Teleworking not only entered violently, due to the lockdown, in our life and in the labor relations of our country but also (as, again we have supported in a series of presentations, workshops and articles) “is here to stay”.
And it has stayed.
The provisions of the recent labor law are moving in the right direction. But they prove to be incomplete. And this, because for a significant period of time after its passing, the (absolutely necessary) Ministerial Orders, which would have filled its gaps, had not been issued.
Businesses have been and are still called upon to improvise, taking the risks themselves.
Once again.-
Stavros Koumentakis
Managing Partner
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (November 28th, 2021).
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.