17 Sep
distance working in Spain Law

Spain´s draft law on distance working: the 10 keys of the last draft agreed on September 1

Spain´s draft law on distance working: the 10 keys of the last draft agreed on September 1

We are going to explain the HomeOffice Law (Distance Working Law). We have analyzed the top 10 keys from the latest draft (September 1, 2020).

The text (although it could still undergo any last-minute changes) must be approved by the Council of Ministers and it would be published in the BOE (Official State Bulletin)

It should be noted that the latest draft contains important modifications with respect to the previous text that aroused a lot of criticism.

1.What is meant by remote work?

The text now defines it as:

“It will be considered regular when, in a period of three months, a minimum of 30% of the day, or the equivalent proportional percentage depending on the duration of the contract, is provided under this modality.”

2. Initial or subsequently agreed remote work

It is expressly established that it may be part of the initial contract or be carried out later.

The worker’s refusal to work remotely, their lack of adaptation or their ineptitude, when they are exclusively linked to this work execution formula, will not be a justifying cause of termination of the employment relationship nor of the substantial modification of the working conditions.

It is expressly established that distance work cannot be imposed in application of article 41 of the Workers’ Statute.

3. Reverse the remote work situation

The decision to work remotely from a face-to-face work modality will be reversible for the company and for the worker.

The reversibility will be done in the terms established in the collective bargaining or, failing that, in those established in the agreement in which distance work must be reflected.

4. Remuneration and professional promotion

The following is expressly established (although, by virtue of the principle of equal treatment, our assessment is that it would not be necessary):

“People who carry out total or partial telework will have the right to receive, at least, the total remuneration established according to their professional group and functions, as well as the supplements established for workers who only provide services in person, particularly in those linked to personal conditions, the results of the company or the characteristics of the job ”.

Likewise, it is expressly established that people who work remotely will have the right to professional promotion under the same terms as those who provide services in person.

5. Training contracts and remote work

In internship contracts and contracts for training and learning, only a distance work agreement will fit that guarantees, at least, a percentage of 50% of the provision of face-to-face services, without prejudice to the telematic development, where appropriate, of the theoretical training linked to the latter.

6. Expenses and their quantification

The development of remote work must be paid for or compensated by the company. The development of the work may not suppose the assumption by the worker of expenses related to the equipment, tools and means linked to the development of their work activity.

However, the compensation is left in the hands of collective bargaining or, failing that, of the agreement reached with the workers’ representatives.

Specifically, the following is expressly established:

“By means of a collective agreement or an agreement between the company and the legal representation of the workers, the mechanism for the determination and compensation or payment of these expenses may be established.”

In addition, it expressly establishes in the new text that (except for what may be agreed in collective bargaining), the distance work agreement must list the expenses and their quantification.

Specifically, the following obligation is expressly established:

Enumeration of the expenses that the worker may have due to the fact of providing services at a distance.

Obligation to specify the form of quantification of the compensation that the company must compulsorily pay and the moment and form to carry it out, which will correspond, if any, with the provision contained in the applicable collective agreement

Obligation to specify the form of quantification of the compensation that the company must compulsorily pay and the time and manner to carry it out, which will correspond, if any, to the provision set forth in the applicable collective agreement.

7. Protocol in case of technical difficulties

It also establishes the obligation to establish within the distance work agreement the procedure to follow in the event of any technical difficulties that prevent the normal development of distance work.

8. Data protection and information security

Together with the above (protocol for technical difficulties), the agreement must include the instructions issued by the company, with the participation of the representation of workers, for the protection of data and information security specifically applicable from tele working.

9. Priorities and modifications in the percentage of attendance

The modification of the attendance percentage may only be made if it is voluntarily attended by both the affected worker and the company and will be done in accordance with the provisions of the applicable collective agreement or company agreement.

People who carry out remote work during their entire working day will have priority to fill jobs that are totally or partially carried out in person.

In addition, it is expressly established that the priority and modification mechanisms must be addressed within the framework of the Equality Plan that corresponds to apply in the company in order to avoid perpetuating stereotypes and gender roles.

10. Possibility of flexible hours

It is left in the hands of what can be established through collective bargaining or, failing that, in the tele working agreement.

Specifically, the following is established: “In accordance with the terms established in the distance work agreement and collective bargaining, and respect for the mandatory availability times and the regulations on work and rest time, the person who performs remote work may make the service hours more flexible established services ”

Now we must wait for the approval of the text in the Council of Ministers and its subsequent publication in the BOE

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