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The first Spanish Telework Law came into force. Keys of the legislation

The telework law in Spain came into force on October 13, 2020, after being approved by Royal Decree Law 28/2020 of September 22, 2020, following the period of adaptation for employers and workers.

The pandemic spurred teleworking. The Government of Spain gave the green light to the first Telework Law, in order to regulate the work activities carried out under this modality. Despite the fact that for some time now, some companies in the world were taking timid steps in teleworkingThe situation experienced with the Covid-19 pandemic accelerated this process by one year. It made it possible to assess the benefits of this modality and to evaluate the feasibility of incorporating it in companies as a valid and duly regulated figure.

Spain is one of the first countries to provide a legal framework for this type of work. on the rise. The remedy came into force 20 days after its approval, in order to guarantee the total adjustment to the changes imposed in this regulation, whereby the companies to which this Law is applicable must adapt the pre-existing telecommuting situations with their workers, for which they have a term that varies depending on the scenario: if teleworking is regulated in individual agreement with the worker, the company will have three months, from the entry into force of the rule; if teleworking is regulated in a collective agreement, then 1) when such agreement becomes invalid, 2) when the term established in the agreement expires, or 3) when the term agreed between the parties ends (which in no case may exceed three years, counted from the publication of the rule); If there is no agreement, the companies will have one year, counted from the publication of the rule, i.e. on September 23, 2021. 

Although the exceptional situation of the pandemic forced companies and employees to telework in a forced mannerHowever, these experiences do not fall within the scope of the new Law. However, the provision grants these companies (which have already used this figure) a minimum of one year to adapt to the norm and compensate the expenses of what the performance implied for the worker during that period. Likewise, they have the possibility of maintaining their agreements, in case they had signed them with the workers, until the effective date expires.

Modernizing labor law and increasing economic productivitywere the pillars that supported the discussion of this law in the European country. In the old continent, the Netherlands was in 2019 the country in Europe with the highest number of teleworkers, while Belgium was one of the pioneers in defining the system of fixed compensation for employees, in order to remedy the expenses involved in working from home. For its part, Portugal has one of the most robust laws in terms of teleworking, as it includes the prevention of occupational risks through the visit of a company technician who studies the safety standards of the home to perform work functions. 

Keys to the Spanish telework law

The approved regulation defines telework as work activities carried out through the use of computer or telematic systems.. It must cover at least 30% of the total working day and it will be up to the employer and the worker to design an individual agreement or collective bargaining agreement that regulates telecommuting, which complies with the new standard, in this sense must include the essential aspects of the relationship, such as: activities, duration of the application under this modality, the amount, the expenses to be compensated, the form of business control and the possibilities of reversing the situation. Teleworking differs from telecommuting in that the latter refers to the tasks performed at the worker's home or place chosen by him, but without its occurrence being of a regular nature.

The Law differentiates between telecommuting and teleworking with respect to occasional and face-to-face telecommuting. Thus, telecommuting will be that which is provided at the worker's home or chosen place during his working day or part of it, on a regular basis. Teleworking will be carried out through the use of computer or telematic systems and, as a general rule, must cover at least 30% of the working day, except in the case of internships, apprenticeships or contracts for underage workers, which will be subject to stricter conditions.

Children under 18 years of age, workers under a training contract or on an experimental internship, and workers under the age of 18 years of age. In addition, those who work remotely on a sporadic basis or those who work from home one day a week, will have special treatment under this law. 

The regulatory framework has, broadly speaking, the following qualities:

  • Telework is voluntary and reversible for the employer and the employee. It must have the prior agreement of the employee and the employer, as it cannot be imposed by either party.
  • The agreement between the company and the employee must be made in writing before teleworking begins. The document must specify: inventory of the equipment to work; enumeration of expenses, quantification of the compensation of expenses and time in which the payment must be canceled; work schedule and rules of availability; distribution of the remote and face-to-face working day; work center to which it belongs; place from where you will telework; protocol to address technical difficulties; means of business control; duration of the agreement; security measures for data protection and information established by the company. 
  • Teleworkers will have the same labor rights as teleworkers. and obligations as the rest of the workforce. This includes working conditions, salary retribution, promotion, education and training opportunities, as well as sexual and labor harassment prevention measures. Likewise, the teleworker must have an efficient mechanism to measure the hours in which he/she works.
  • Dismissals and other damages for lack of adaptation to teleworking conditions are not allowed.
  • The company will assume the cost of the expenses involved in working from home.. The teleworkers will have the right to be provided with the means to execute their activities and technical attention in case of experiencing complications of this nature. Among the tools for the work are the computer and operating system, internet connection and consumables such as furniture and necessary office tools. 
  • Employees who were already working in this mode of employment must also sign an agreement under the guidelines required by law. 
  • Priority to teleworking is given to those who have already performed teleworking functions.The company shall not be responsible for those who work remotely from the beginning of their employment relationship. Teleworking opportunities shall be advertised by the company and at the time of designating the positions, co-responsibility between men and women shall be encouraged.
  • This law does not cover public sector workers.The legal considerations shall apply to them.

Is it possible to implement teleworking in Venezuela?

In this regard, it should be noted that under Venezuelan labor legislationHowever, teleworking presents the constituent elements of an employment relationship, such as: the provision of services, subordination and remuneration, so in our opinion it must be governed by the Venezuelan labor laws.

In this sense, it is important to adapt the labor regulations to regulate the figure of teleworking. and thus establish the constituent elements of a relationship that allows workers and companies that find themselves in such a situation to know in advance the rights, obligations and benefits to which they are entitled. 

In addition, the International Labor Organization (ILO), through its Manual of Best Practices The company has promoted this modality to generate new opportunities for decent work under innovative forms of work organization, in a context of social dialogue that increases the productivity of business organizations.

Under the current world crisis due to the Pandemic, teleworking can accelerate Venezuela's economic recoveryIf all the advantages that this figure offers are taken into account, teleworking is presented as a very viable option for those companies or sectors that can operate at a distance, our recommendation is that the interested parties previously define the rules and working conditions.

If you require more information or advice, we have a team of specialists in the area that can provide you with the best options on this subject.

Sources consulted