teletrabajo

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After the pandemic-imposed remote working experience, it looks like this work mode is taking a strong hold in some sectors. Its advantages, including space and cost savings, reduced travel favoring sustainability policies, enhanced work-life balance and attracting international talent, are helping consolidate it in some companies. Although the figures remain lower than in other EU countries, this work mode has grown exponentially in Spain, from around 1.6 million remote workers at the start of the pandemic to almost 3 million in March 2021 (data from Adecco Group Institute).

This rise in the number of stable remote workers shows that, for many companies, this is no longer merely a preventive response to the pandemic but has become an organizational choice. This has made it necessary to complete the regulation on this matter introduced by  Royal Decree Law 28/2020, of September 22, on remote working, currently a draft bill and yet to pass through the Senate.

The specific scope of many of the rights and obligations established in this regulation has been left to collective bargaining. This is the case, for example, with the workers’ right to have the company pay for the remote working expenses associated to equipment, tools and resources linked to their professional activity.

It is clear that sections 11 and 12 of Royal Decree Law 28/2020 require that the company ensure that the remote worker has the necessary means, equipment and tools and cover or compensate the expenses involved in this form of work. However, the regulation does not specify the content of this right and merely establishes that collective bargaining agreements can establish the mechanism for determining and compensating or paying for these expenses.

This call to collective bargaining is already being answered in recently signed collective bargaining agreements that are creating different formulas to quantify and allocate the costs of remote working between the company and the worker: from the company’s obligation to provide only the means and equipment, to also paying a fixed monthly sum for remote working expenses. The options are very broad, and there will be as many formulas for providing resources and allocating expenses as there are jobs, based on the nature and specific features of each sector.

This is no trivial matter, as the company’s obligation is clear and failure to comply can give rise to conflict and jeopardize the formula’s success. By reviewing the different company and industry collective bargaining agreements that are already regulating the allocation of remote working costs, we can see that different solutions, adapted to the balances and preferences of each company or industry, are being agreed. Below are some of these formulas:

  • The company providing the means and a fixed sum

    The most common formula applied in collective bargaining agreements regulating remote working envisages the company providing the means and predetermined financial compensation for expenses arising from this modality of work.

    This is the option selected, for example, in the XXIV collective bargaining agreement for the banking sector (published in March 2021). That agreement envisages the company providing a computer (tablet, laptop or similar device), a cellphone with enough minutes and data for shared connection with the computer, and an ergonomic chair (at the worker’s request), as well as a keyboard, mouse and screen (or, at the company’s choice, a maximum of €130 in a lump sum for these three items). It also provides up to €55 per month for expenses, which will be paid proportionally when the remote work is not full time.

    Other collective bargaining agreements, e.g., the collective bargaining agreement for savings banks and financial institutions (published in December 2020), the collective bargaining agreement for department stores (signed and pending publication), and the collective bargaining agreement of Financiera El Corte Inglés, EFC, S.A. (published in May 2021), regulate the costs in similar terms, with additional amounts ranging from €23 to €55 per month.

    The collective bargaining agreement for the banking industry also includes an alternative system when remote working represents less than 30% of the total working hours, which is the limit established in Royal Decree Law 28/2020 for the application of this regulation. Thus, when remote working accounts for less than 30% of the working hours, the company will only provide the remote worker with a computer (tablet, laptop or similar device) and a cellphone with minutes and data.
  • Referring to the individual agreement

    In contrast, other agreements merely contain a generic reference to the individual remote working agreement that the company and the remote worker must enter into, in which case the allocation of costs will be negotiated directly on an individual basis.

    This is the case with the IV collective bargaining agreement of Nokia Transformation Engineering & Consulting Services Spain, S.L.U. (published in August 2020, before Royal Decree Law 28/2020), which provides that remote working terms will be negotiated with each worker, and that implementing the remote working process will not entail any additional cost for the company.

    The 10th national collective bargaining agreement for pasta industries (published in April 2021) also refers to the agreement between the company and the worker to determine what must be appropriately compensated, e.g., internet connection and telephone.

    Nonetheless, there are other collective agreements that, in the absence of an individual agreement, envisage paying a predetermined sum. This is the case of the 20th general collective bargaining agreement for the chemical industry for 2021-2023 (signed and pending publication), which, given the diverse activities it regulates and that can be performed remotely, refers to individual negotiation and, if there is no express agreement on financial compensation, envisages a gross payment of up €35 per month, to paid proportionally if the remote work is not full time.
  • Regulating only the company’s provision of resources

    Finally, some collective bargaining agreements only envisage the company providing resources and do not expressly address its obligation to bear the remote working expenses.
    For example, the 3rd collective bargaining agreement of Corporación de Radio Televisión Española, S.M.E., S.A. (published in December 2020) establishes that the equipment used for remote working belongs to the company and cannot be used for personal purposes. It also states that remote workers must have the telecommunications and connectivity services required to perform their functions remotely, and that they must bear the costs of adapting or improving their home facilities and other electricity, water and heating costs.

Ultimately, based on these examples, collective bargaining presents great opportunities to take advantage of the leeway offered in the regulations to comply with the legal requirements in a viable, flexible and balanced manner, considering the specific features of each company and industry, their impact in terms of attracting and retaining talent, their legal significance (salary v. non-salary nature), as well as the possible social security and tax contingencies (which are by no means minor). Therefore, the reality of professional relationships must be analyzed in detail in each case, using high-quality, multidisciplinary advice, to design and develop the remote working agreements that will regulate the company providing the means and bearing the costs of this modality of work that is here to stay.

This post is also available in: Español

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Socio

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Experto en relaciones colectivas de trabajo, habiendo intervenido en varios de los más relevantes y complejos procesos de reestructuración y negociación que han tenido lugar en los últimos tiempos. Asimismo se encuentra especializado en la estructuración de mejoras de la acción protectora de la Seguridad Social y en sus instrumentos de exteriorización, así como en su utilización en procesos de restructuración empresarial.

guillermo.garcia@cuatrecasas.com

Knowledge Lawyer (ACI)

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franciscoramon.lacomba@cuatrecasas.com

Asociado

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ernesto.ruiz@cuatrecasas.com