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Telework established in the companies while the containment measures for the COVID pandemic last is not governed by these regulations

This Royal Decree stablishes:

  1. Its voluntary nature for both parties (employees and employer) and will require a written agreement between both parties.
  2. Equal rights for all employees, no matter if they work at the office or on remote basis
  3. The right to training and professional career
  4. Full exercise of their collective rights
  5. The provision of equipment, health and safety
  6. Management of work organization in accordance with applicable regulations and collective bargaining agreements.

The written agreement should include (mandatory minimum content):

  • Inventory of the equipment, tools and means.
  • Any expenses incurred by the employee and their compensation.
  • Working hours and, within them, availability rules.
  • Percentage and distribution between face-to-face and remote work.
  • The work centre of the company to which the employee is assigned and the place chosen by the employee for the remote working.
  • Duration of the remote working agreement and notice of reversibility.
  • Means of company control of the activity.
  • Procedure in case of technical difficulties, data protection and information security.

The modification of the remote working agreement already signed, will require a new written agreement prior to its implementation, even if only the percentage of remote/on-site work varies.

The chapter III of this Royal Decree develops the equal rights proclaimed in chapter I.

Workers’ rights

a) The right to a professional career. It includes the right to training and the right to professional promotion on the same terms as those who render services in person. Arts. 9 and 10.

b) Provision of resources. The company shall provide all the means, equipment and tools necessary for the development of the activity, in accordance with the inventory (i) included in the telecommuting agreement, agreement or collective agreement of application. The company will also attend to its maintenance and to the technical difficulties that arise in the telework. Art. 11.

c) Compensation of expenses. The worker will not assume expenses related to the equipment, tools and means linked to the development of his labour activity. The agreements or collective agreements may establish the mechanism for the determination, and compensation or payment of these expenses. Art. 12.

d) Right to flexible working hours. The agreement adopted shall be applied, respecting the times of mandatory availability and the regulations on working time and rest. The time recording system, regulated in art. 34.9 Workers’ Statute shall faithfully reflect the time dedicated to the work activity and shall include, among others, the start and end time of the working day. Arts. 13 and 14.

e) Right to occupational risk prevention. Law 31/1995, of November 8, 1995, on the Prevention of Occupational Risks, and its implementing regulations, apply to them. The evaluation of these risks must pay special attention to psychosocial, ergonomic and organizational factors and must focus on the area of the building where services are provided. A visit may be necessary. Arts. 15 and 16. In this case, the company will not comply with a visit, we will organize with a small questionnaire already sent to each employee, it was prepared by the labour prevention risk company.

f) Right to privacy and data protection. Organic Law 3/2018, of December 5, 2018, on Personal Data Protection and guarantee of digital rights applies. – The company may not require the installation of programs or applications on devices owned by the worker, nor the use of these devices in the development of remote work.

  • Companies must establish criteria for the use of digital devices.
  • Collective bargaining agreements may specify the terms under which employees may use, for personal reasons, the computer equipment made available to them by the company. Art. 17.

g) Right to digital disconnection. Remote workers have this right outside their working hours under the terms established in Article 88 LO 3/2018, of December 5. During rest periods and outside working hours the disconnection entails a limitation on the use of technological means of business communication and work. Collective bargaining agreements or agreements may establish the appropriate means and measures to guarantee it. Art. 18.

h) Collective rights. The remote workers shall have the right to exercise their rights of a collective nature with the same content and scope as the rest of the workers of the centre to which they are attached. Art. 19.

Nevertheless, it should be borne in mind the renovation of CBA sector may lay down better conditions to the employees (e.g., remote working affects in any case when the employee works out of the office), in which case, we will have adapted the agreement according with the renovation of CBA sector.

(i) The inventory needs to include the equipment delivered to the employee for the WFH and, if the employee does not want something, it has to be included also and write why he/she does not want it.

This provision of resources could mean to also include the ergonomic chair within the rest of equipment for WHF (our legislation talks about equipment, not costs).