Royal Decree-Law 28/2020, of 22 September, on Remote Work

OFFICIAL BULLETIN OF THE STATE No. 253 Wednesday, September 23, 2020 Sec. I. Page 79929 I. GENERAL PROVISIONS HEAD OF STATE 11043 Royal Decree-Law 28/2020, of September 22, on remote work. STATEMENT OF MOTIVES I Remote work, understood as work performed outside the company's usual establishments and centers, of which telework is a sub-species involving the provision of services with new technologies, has been subject to regulation both domestically and within the European Union and international contexts. At the European level, the European Trade Union Confederation (ETUC), the Union of Industrial and Employers' Confederations of Europe (UNICE), the European Association of Craft, Small and Medium-sized Enterprises (UEAPME), and the European Centre of Enterprises with Public Participation (CEEP) signed, as early as 2002, the European Framework Agreement on Telework, subscribed to by European social partners in July 2002 and revised in 2009, in order to provide greater security for dependent teleworkers in the EU. This Agreement understood this modality of remote work as a means to modernize the organization of work for companies and public service organizations, and to give greater autonomy to workers in the performance of their tasks. The object of the Agreement was to draw up a general framework at European level on the working conditions of teleworkers and to reconcile the needs for flexibility and security that are common to them and to companies. The Agreement grants remote workers the same overall protection as those who carry out their activities in the company premises. In this Agreement, telework is defined as a form of organization or performance of work using information technologies, within the framework of a contract or employment relationship, in which work that could also have been performed in the company premises is carried out habitually outside them. The Agreement highlights several key areas, in which the peculiarities of telework must be taken into account. In particular, this agreement refers especially to the voluntary nature of telework; the equality of rights of teleworkers in relation to those who carry out their activity in the company establishment, with an express mention of their right to training and professional career, or to the full exercise of their collective rights; the provision of equipment; safety and health, specifying the full application of European legislation on the matter and the corresponding corporate responsibility; the management of the organization of work by the teleworker, within the framework of applicable legislation and collective agreements. Likewise, the International Labour Organization regulated, in its Convention No. 177 and Recommendation No. 184, homework, understanding that this modality occurs when the work activity is carried out at the worker's home or in another premises chosen by them, different from the company's workplaces, in exchange for remuneration and with the aim of producing a product or providing a service in accordance with its specifications. Within the scope of Spanish internal legislation, Law 3/2012, of July 6, on urgent measures for the reform of the labor market, modified the regulation of traditional homework to accommodate remote work based on the intensive use of new technologies. The statement of motives of said law recognized telework as a particular form of work organization that fits perfectly into the productive and economic model, by favoring the flexibility of companies in the organization of work, increasing employment opportunities and optimizing the relationship between working time and personal and family life. According to this modification, remote work is defined in article 13 of the consolidated text of the Workers' Statute, approved by Royal Legislative Decree 2/2015, of October 23, as that in which "the performance of the labor activity is carried out predominantly at the worker's home or at the place freely chosen by them as an alternative to its face-to-face development in the company's workplace". Furthermore, remote work is fundamental to favor the settlement and fixation of population in rural areas, as stated in the General Guidelines of the National Strategy against the Demographic Challenge, approved by the Council of Ministers on March 29, 2019. This rule must serve to make feasible the opportunity to reverse depopulation, in accordance with the characteristics of territories suffering demographic decline, such as rural and remote areas, or small municipalities. Article 13 of the Workers' Statute is insufficient to apply it to the peculiarities of telework, which requires not only a labor service that develops preferably outside the company premises, but also an intensive use of new information and communication technologies. For its part, Royal Decree-Law 6/2019, of March 1, on urgent measures to guarantee equal treatment and opportunities between women and men in employment and occupation, modified article 34.8 of the Workers' Statute, anticipating the content of Council Directive 2019/1158 (EU) of June 20, 2019, on work-life balance for parents and carers and repealing Council Directive EU 2010/18, in which a genuine right to the balance of work and family life is established through the use of flexible forms of work, including remote work formulas. In Organic Law 3/2018, of December 5, on Personal Data Protection and guarantee of digital rights, a set of rights related to the use of devices in the workplace are established for the first time expressly, and collecting national, community and international jurisprudence, such as, among others, the right to privacy and use of digital devices in the workplace and the right to digital disconnection. Article 5 of Royal Decree-Law 8/2020, of March 17, on urgent extraordinary measures to face the economic and social impact of COVID-19, establishes the preferential nature of remote work compared to other measures regarding employment, the company must adopt the appropriate measures if this is technically and reasonably possible and if the necessary adaptation effort is proportionate, being an exceptional rule with limited validity. II The expansion of the pandemic and the necessary containment measures have abruptly altered the evolution of the global economy, with pronounced drops in activity and employment. Even if the pandemic subsides, a sharp fall in Gross Domestic Product (GDP) is expected, depending on the growth rates and the possibilities of recovery on the evolution of the pandemic and the possibility of outbreaks. The GDP of the Spanish economy has suffered the largest interquarterly contraction in its history, with the impact of this crisis being especially acute on employment, with a strong reduction in affiliations to Social Security and a massive use of temporary employment regulation files. But in addition to the above, most of the adjustment is falling on the group of people with temporary contracts, and within these, on young female and male workers. The geographical and sectoral incidence has been very heterogeneous, being more negative in services than in manufacturing, being a stable data over time that in these sectors or the so-called "social industries", women and minors under 35 are overrepresented, reaching percentages that exceed forty percent. From early May, in a context of greater control of the pandemic, the progressive implementation of the De-escalation Plan has translated into a gradual reactivation of the economy, and all projections point to a very marked contraction in 2020, followed by a substantial rebound in 2021. In any case, a high degree of uncertainty remains that depends on the evolution of the pandemic and the pace at which activity recovers a certain normality, the damage that may have occurred in the productive fabric and the growth potential. In sum, to the challenges that were already posed in the Spanish labor field (temporality rates, risk of wage poverty, labor precariousness and a strong segmentation), new challenges are added that require facing post-COVID-19 changes in globalization and digitalization processes, and the use of effective formulas to increase productivity that increase the quality of employment and reduce the existence of wage and professional gaps. On the other hand, the health crisis has made remote work show itself as the most effective mechanism to ensure the maintenance of activity during the pandemic and to guarantee prevention against contagion. During the health crisis, not only has the trend towards the normalization of remote work, which was already anticipated prior to it, been reinforced, but even its use has come to be configured as preferential. In some countries, the figures clearly reflect this preference for use: for example, in Finland during the pandemic, the use of telework reached sixty percent. Likewise, in countries such as France, Portugal or Italy, the use of remote work was configured with a certain degree of obligation or preference over other forms of corporate action during the pandemic. According to the Eurofound survey "Living, working and COVID-19", almost four in ten workers (thirty-seven percent) started teleworking because of the pandemic (thirty percent in Spain). This has contributed to the number of hours worked decreasing less in those countries where telework has increased to a greater extent. Similarly, in a survey of SMEs carried out by CEPYME, telework is assumed as the star measure to face the coronavirus crisis, in forty-six percent of cases. In sum, communication technologies have constituted a key tool to reduce the impact of containment measures and restrictions on productive activity, which favors workers and companies, makes possible efficient and highly specialized companies, allows the economic acceleration of rural areas and increases employment opportunities. The described situation of GDP contraction, unemployment rate, uncertainty about the evolution of the pandemic, the feedback of these uncertainty factors on the risks and structural weaknesses of the Spanish labor market, the safeguarding of the rights and obligations referred to in our labor legislation, make it necessary to promote in an orderly, urgent and guaranteed way the use of remote work. III Remote work, in its classic conception of homework, as that which is carried out outside the usual workplace and without direct control by the company and linked to very specific sectors and geographical areas, has been surpassed by the reality of a new framework of relations and a severe impact of new technologies. Currently, rather than homework, what exists is remote and flexible work, which allows work to be performed in new environments that do not require the presence of the worker in the workplace. This virtualization of labor relations disconnects or decentralizes the worker from a specific place and time, which undoubtedly brings with it notable advantages, among others, greater flexibility in the management of working and rest times; greater possibilities, in some cases, of self-organization, with positive consequences, in these cases, for the balance of personal, family and work life; reduction of costs in offices and savings on travel costs; productivity and rationalization of schedules; fixation of population in the territory, especially in rural areas; commitment and experience of the employee; attraction and retention of talent or reduction of absenteeism. The figure of telework as a form of remote work is gaining ground against traditional business organization, which undoubtedly brings with it novel and more flexible practices, which stimulates organizational changes in companies and strengthens the training and employability of workers. Likewise, it decreases pollution as the number of trips and the use of private vehicles decreases, and potentially will have positive effects on the emission of greenhouse gases by seeking greater efficiency in the energy consumption of companies. However, it also presents possible disadvantages: data protection, security gaps, techno-stress, continuous schedule, computer fatigue, permanent digital connectivity, greater work isolation, loss of corporate identity, deficiencies in the exchange of information between those who work face-to-face and those who do so exclusively at a distance, difficulties associated with the lack of basic services in the territory, such as digital connectivity or services for work-life balance, or transfer to the worker of the costs of productive activity without any compensation, among others. Telework has settled in our country as a response to the restrictions and containment measures of the pandemic still in force, in a legal context characterized by the almost total absence of specific regulation. The generalization of telework in Spain, which is caused by the measures adopted by the competent authorities to contain and halt the expansion of the pandemic, has translated into a sort of imbalance of rights and obligations between companies and workers, at least. A rule is required to help the corporate and worker parties to transfer the protective nature of labor law to the new reality that has been exponentially accelerated, as a consequence of exogenous and unpredictable circumstances for unions, employers, companies, workers and for the Government itself. In short, the extension and normalization of remote work without a sufficient legal framework that allows establishing the necessary certainties and guarantees can distort the framework of labor relations, and affects conditions that are incorporated as essential according to our constitutional and legislative framework (article 35 of the Spanish Constitution and the Workers' Statute) and the body of international, community and national norms that integrate "a minimum social floor" (among others, Recommendation 2017/761, of April 26 European Pillar of Social Rights, chapter II, Directive 2003/88/EC, of November 4, 2003, European Social Charter, made in Turin on October 18, 1961, ratified by Instrument of April 29, 1980, Organic Law 3/2018, of December 5, on Personal Data Protection and guarantee of digital rights, Framework Directive 89/391/EEC of the Council, of June 12, 1989, on the application of measures to promote the improvement of the safety and health of workers at work and the consolidated text of the Workers' Statute Law). IV The objective is to provide sufficient, transversal and integrated regulation in a single substantive rule that responds to various needs, balancing the use of these new forms of dependent work provision and the advantages they represent for companies and workers, on the one hand, and a framework of rights that satisfy, among others, the principles on their voluntary and reversible nature, the principle of equal treatment in professional conditions, especially remuneration including expense compensation, promotion and professional training, the exercise of collective rights, maximum working times and minimum rest times, equality of opportunities in the territory, flexible distribution of working time, as well as preventive aspects related basically to physical and mental fatigue, the use of data display screens and the risks of isolation. It is therefore necessary to fill the regulatory gap that exists, equalizing the legal treatment in the most important aspects of this form of work organization, resorting to collective bargaining to the extent necessary, which is considered an indispensable instrument to complete the applicable legislation in each of the specific sectors, establishing own criteria. This rule is also the result of social concertation, of a prolonged process of shared reflection and debate that, after more than three months, has managed to culminate in the Remote Work Agreement (RWA), which ensures the fair balance of the regulation of remote work and, which undoubtedly will determine its durability over time, as happens with all those changes that affect the labor field and come hand in hand with consensus. This basic regulation, which is understood to be necessary with a general scope regardless of the professional sector, develops, as its axes, three minimum aspects, which already appear in the aforementioned European Framework Agreement on Telework, in the community body –among others, directives on minimum safety and health conditions, on working time and predictability and transparency in working conditions– or in the statutory legislation which is the personal and material framework in which it develops. First, its definition, which goes beyond the concept of article 13 of the Workers' Statute and introduces the necessary ingredients of specification. Relevant for the purposes of foreseeing greater protection is the regular nature of this form of provision, guaranteeing the necessary flexibility in its use, which will accommodate the different circumstances and concurrent interests of companies and workers, avoiding any rigid conception, but providing the necessary legal security, being applicable to any form of work in which the conditions provided for in article 1.1 of the Workers' Statute concur. Second, its voluntary nature for the worker and the company, must be adopted through a written agreement that must include all pertinent written information, including the specifics derived from remote work that allow guaranteeing with clarity and transparency the content of its essential elements, beyond what can be deduced from general labor legislation. In this way, this modality of organization or provision of labor activity does not result from the powers of direction and organization of companies, nor from the figure of the substantial modification of working conditions –article 41 of the Workers' Statute– but is a voluntary option for both parties. The rule establishes certain limitations regarding specific cases, such as minors and training contracts. In the first case, vulnerability, training and rest needs and special susceptibility to risks linked to this specific form of organization (physical and mental fatigue, isolation, security and harassment problems at work) suggest that in this group, in accordance with the requirements of existing legislation, articles 6.2 of the Workers' Statute and 27 of Law 31/1995, of November 8, on Prevention of Occupational Risks, limitations be established that guarantee a minimum of presence time in the aforementioned remote work agreements. Regarding training contracts, just as with other aspects and incidences of their legal regime, they require the necessary precautions and limitations to guarantee compliance with their object, whether it is the professional practice appropriate to the level of studies completed, or the obtaining of a professional qualification, under the adequate and sufficient supervision of the company. Third, and regarding their working conditions, those who develop remote work will benefit from the same rights as those guaranteed by the legislation and collective agreements applicable to comparable persons who work or, if they exist, worked, in the company premises, without this modality of organization implying any change in the legal status of the worker, nor constituting a justified cause in itself to modify working conditions or to extinguish the employment relationship. However, taking into account the peculiarities of remote work, the royal decree-law collects complementary aspects, which are necessary precisely to guarantee that the same level of protection is maintained. Thus, elements such as the delivery and installation of equipment and means necessary for the development of remote work, the costs associated with its use and maintenance, the exercise of adequate and specific training actions, the identity of access, treatment and timely knowledge of professional promotion opportunities, the installation of control and surveillance means, the correct application of safety and health measures, the limitations on access to the workplace when it coincides with the worker's home, the organization of working time, including flexibility, availability periods and adequate recording, the necessary link to a workplace, etc., are essential conditions that must appear expressly