The regulation of teleworking has been the subject of discussions since 2000, but it was in 2002 that such discussions materialized for the first time through the adoption of the Framework Agreement on Telework by the social partners at the level of the European Union. Since then, the aim has been to modernize employment relationships, in order to increase the productivity and competitiveness of the companies.
Teleworking seems to be finally regulated at national level too. Recently, the Chamber of Deputies adopted the Draft Law on the regulation of telework, which was subsequently sent for promulgation to the President of Romania.
The draft law defines telework as follows: "the form of organization of work under which the employee, on a regular and voluntary basis, performs the duties specific to his/her position, activity or job, in a place other than the workplace organized by the employer, at least one day per month, using information and communication technology". The draft law uses the term "teleworkers" to designate employees performing telework.
DIFFERENCES TO THE CURRENT LEGAL REGIME OF WORKING FROM HOME
Currently, the work from home, which is a form of telework, , is briefly regulated by the Labour Code, which provides for the general right of the employee to work from home and to establish his/her work schedule while being under the employer's control, during a time interval announced beforehand.
With the exception of the above and the right to benefit from the transport of resources from and to the employee's domicile ensured by the employer, the employee benefit from the same rights and is held by the same obligations as if he/she were performing the work at the workplace organized by the employer.
From the three articles that address homeworking, it appears that the legislator has rather considered manufacturing activities than activities based on information technology, referring to "raw materials" and "finished goods".
Unlike the current legal regime, the new draft takes into account the current technological progress and reality.
THE NEW REGULATION
Although it addresses a topic of high current importance and interest in the labour market at present, the draft law limits to a fairly high degree the flexibility of such an arrangement, to ensure a conventional framework as clear as possible between the parties and to ensure the occupational safety and health measures for such situations.
Thus, we notice little flexibility in establishing the means by which the telework is performed and, in particular, a series of obligations imposed on the employer, which are likely to complicate the use of this concept, and whose non-compliance may entail sanctions between RON 2,000 and RON 10,000.
Thus, the legislator stipulates that the employer and the employee must establish, by concluding an addendum to the employment agreement, the places where the telework will be performed, thus limiting the employee's territorial flexibility, while the employer will have the obligation to ensure the occupational safety and health measures at the places where telework is performed. Given the factual realities, it will be difficult for the employee and the employer to comply with these obligations and to enjoy at the same time the flexibility they would expect from this manner of working.
Content of the regulation
In order for work to be performed also by the means regulated by the present draft law, this possibility must have been expressly provided either in the individual employment agreement, or by addenda thereto.
From this perspective, all companies that currently have certain provisions in the Internal Regulations or Internal Policies regarding the possibility for employees to work at home a few days a month, as a working advantage, should conclude as soon as possible addenda to the individual employment agreements, as failure to do so may result in sanctions of RON 10,000 per person.
The refusal of the employee to perform teleworking activities, as defined by the draft in question, cannot constitute a reason for disciplinary sanction.
The individual employment agreement or the addendum must provide a number of additional elements to those provided in art. 17 par. (3) of the Labour Code, such as (i) the period in which the teleworker carries out his/her activity at another workplace, (ii) the list of the places where the employee can carry out his/her activity, (ii) the method of recording the hours worked by the teleworker, (iii) the timeframe during which the employer can come to control and the concrete way of exercising such control, (iv) the measures taken by the employer to ensure that the teleworker is not isolated from the rest of the employees and that he / she can meet other colleagues on a regular basis, and (v) the conditions under which the employer bears the costs pertaining to the activity carried out as telework.
In addition, the teleworking activity will involve additional rights and obligations for both parties of the employment contractual relationship, of which we list the following:
- The employer's right to check the activity of the teleworker, provided that the schedule and concrete modalities by which this control will be exercised are expressly provided in the employment agreement;
- The employer's obligation to ensure the transport to and from the place of telework of the materials used by the teleworker in his/her activity;
- The teleworker's obligation to inform the employer about the work equipment used and the conditions existing at the places where the activity is carried out;
- The employer's obligation to ensure the necessary conditions for the teleworker to receive adequate and sufficient training in the field of occupational safety and health, especially in the form of information and working instructions specific to the place
where the telework is performed and the use of equipment with visual display.
Another novelty lies in the right of the representatives of trade unions and competent authorities to have access to the place of performance of the telework, in order to check the working conditions of the teleworker, namely to verify the compliance with the legal requirements in the field of occupational safety and health. If the workplace is the employee's domicile, such access is subject to the employee's prior approval.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.