EC: Telework agreement breaks new ground

A new EU-level cross-sector social partner agreement on the regulation of telework was signed on 16 July 2002. The accord regulates a range of areas, including employment conditions, equality, health and safety, representation and training. However, the truly innovative element of the accord is the fact that it is a voluntary agreement, which means that it will be implemented in member states by the members of the signatory parties rather than given legal underpinning by a Directive. We examine the accord in detail.

Click here to view the text of the agreement.

Teleworking is an area that has been expanding over the past decade, in tandem with the development of new technology which enables employees to work remotely, either on a regular basis or in a more informal, ad hoc way. This way of working has spread across all European countries, although arguably it is more widespread in those countries that have good communications and information technology infrastructures .

The past few years have also seen the conclusion of a range of accords at a variety of levels. At European level, the sectoral social dialogue has over the past year produced an agreement in the telecommunications sector and the commerce sector. In individual member states, recent developments include an agreement in the service sector in Denmark an agreement at the German telecommunications group Deutsche Telekom and most recently an accord at the German rail organisation Deutsche Bahn (Germany: New agreement on teleworking at Deutsche Bahn).

Background

Commission consultations

Aware of the growing momentum of teleworking, the European Commission first began looking at the possibility of creating an EU-level framework to regulate this type of work around two years ago. In accordance with the procedure set out in Article 138 of the Treaty establishing the European Community, it issued a first consultation paper to the EU-level social partners in June 2000 on the general issue of the modernisation of work. In this consultation, it asked the social partners for their views on ways in which employment relations could be modernised and improved. It also asked them for their views on: the possible direction of Community action on the principles to be followed in the modernisation and improvement of employment relations; and the establishment of a mechanism to review existing legislative and contractual rules governing employment relations.

In this first consultation, the Commission asked the social partners to concentrate on two specific issues:

• telework; and
• "economically dependent workers", defined as workers who, although they are not employees in the traditional sense, nevertheless rely upon a single source of employment.

After collecting and assessing responses to this first consultation exercise, the Commission issued a second consultation paper to the EU-level social partners in March 2001. Having decided that the topic of economically dependent workers needed more consideration, it focused in this second consultation exercise solely on the issue of telework. This consultation asked the social partners to consider a number of principles as a potential basis for developing a framework to govern this form of working. These were:

• access to teleworking, including matters such as the issue of volunteering to telework and the right to return to office-based work;
• a guarantee that the employment status of teleworkers should be retained;
• equal treatment between teleworkers and their office-based counterparts;
• issues surrounding the information to be given from employers to teleworkers;
• guarantees that the employer should bear the costs involved in teleworking;
• health and safety issues for teleworkers;
• working time for teleworkers;
• protection of the teleworker's private life and personal data;
• maintenance of contact between the teleworker and the employer; and
• collective rights of teleworkers.

Social partner positions

During the Commission's first stage of social partner consultations on the modernisation of work, the European Trade Union Confederation (ETUC) had expressed its desire to negotiate a European-level agreement with employers on the issue of telework. It hoped at the time that such an agreement could follow the format of previous EU-level social partner agreements (on parental leave, part-time work and fixed-term contracts) which had subsequently been given binding legal effect by a Council decision in the form of a Directive. The negotiation of these agreements took place within the framework of the procedure provided for by Article 139 of the Treaty.

On the employer side, the organisation representing public sector employers, CEEP, was not especially opposed to the idea of a binding agreement on telework. However, the private sector employers' organisation UNICE was less keen to enter into negotiations for a binding agreement. It announced on 8 March 2001, just 11 days before the Commission issued its second social partner consultation (see above), that it was prepared to enter into negotiations, but that any resulting agreement should be of a voluntary, rather than binding, nature. At the time, UNICE president Georges Jacobs stated that "telework is a way of working, not a legal status. It is not a theme for regulation at EU level but we think that voluntary negotiations could help develop telework in Europe."

The ETUC's reaction to this at the time was one of surprise, with ETUC general secretary Emilio Gabaglio declaring himself to be "astonished" that UNICE did not see teleworking as a legal status, arguing that teleworking is governed by a number of employment and working conditions that are subject to a statutory framework.

In the months that followed, an exchange of letters took place between the ETUC and UNICE in which the ETUC sought reassurance that if an EU-level agreement on telework were not to be legally binding, there could be some guarantees that it would be adequately implemented in EU member states. For details of these debates, see The future of the European social dialogue. UNICE stressed that the signatory parties to any agreement would, by the fact of signing the agreement, be sufficiently motivated to ensure that the accord was implemented at national level.

After some months of such dialogue, the ETUC was sufficiently reassured on the implementation procedures to consent to enter into negotiations with UNICE and CEEP on a voluntary telework agreement, and the social partners made an announcement to this effect on 20 September 2001. Thus, negotiations duly opened on 12 October 2001.

The agreement in detail

After a total of eight months of negotiations, an agreement was reached on 23 May 2002 and formally signed by the bargaining parties - the ETUC (with the liaison committee Eurocadres/CEC), UNICE/UEAPME (representing small and medium-sized firms) and CEEP - on 16 July 2002. The agreement is a four-page document, comprising a one-page statement on general conditions followed by the provisions in more detail, including a definition of what constitutes telework.

General conditions

In its opening paragraphs, the agreement states that the signatory parties view teleworking as a way in which employers (both in the private and public sectors) can modernise work organisation, and as a practice whereby workers can improve their work-life balance and achieve a greater autonomy in the workplace. It maintains that if Europe wants to exploit the information society to the full, as set out in the aims of the March 2000 Lisbon Council, it must encourage this new form of work organisation in a way that balances flexibility and security.

It states that this accord, which is voluntary, aims to establish a general framework at EU-level which is to be implemented by the members of the signatory parties "in accordance with the national procedures and practices specific to management and labour". The parties also invite their members in the countries applying to join the EU to implement the accord.

The parties also make it clear that implementation of this agreement does not constitute valid grounds to reduce the general level of protection already afforded to workers in this area. It also does not prejudice the right of the social partners to conclude "at the appropriate level, including European level", agreements adapting and/or complementing this agreement in order to take note of the specific needs of the social partners concerned, thus giving a certain amount of flexibility to adapt provisions to specific situations. It also states that care should be taken to avoid unnecessary burdens on small and medium-sized enterprises (SMEs) when implementing this agreement.

Definition and scope

The agreement defines teleworking as: "a form of organising and/or performing work, using information technology, in the context of an employment contract/relationship, where work, which could also be performed at the employer's premises, is carried out away from those premises on a regular basis." A teleworker is a person carrying out telework in accordance with this definition. It would, therefore, probably not cover those workers who only occasionally work at home or away from their normal place of work.

Voluntary nature of telework

In some cases, telework may be required as part of a worker's initial job description. However, if telework is not part of the initial job description and the employer subsequently makes an offer of telework, the employee may either accept or refuse this offer. Conversely, if a worker expresses the wish to telework, the employer may accept or refuse this request.

If telework is not part of the initial job description, the decision to opt for telework is reversible by individual and/or collective agreement, at either the employer's or the worker's request. This is a potentially complicated area which the agreement does not attempt to regulate in any further detail, stating merely that "the modalities of this reversibility are established by individual and/or collective agreement". Thus, any procedures in the case of disputes in this area would need to be set out in an additional agreement.

Written information

The employer must provide the teleworker with written information in accordance with the Directive on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship (91/533/EEC). This includes information on applicable collective agreements and a description of the work to be performed. It states further that the nature of telework will normally require employers to provide additional written information on issues such as the department to which the teleworker is attached, their immediate superior and other reporting arrangements.

Employment status

As the passage to telework only modifies the way in which work is performed, this does not affect the teleworker's employment status. A refusal on the part of the worker to telework "is not, as such" a reason for terminating the employment relationship or changing that worker's employment terms and conditions.

Employment conditions

The accord states that teleworkers should benefit from the same rights, guaranteed by legislation and collective agreements, as comparable office-based workers. However, it adds that "in order to take into account the particularities of telework", complementary collective and/or individual agreements may be necessary.

In the case of monitoring, the accord states that the privacy of the teleworker must be respected by the employer and that if a monitoring system is put in place, it must be proportionate to the employer's objective and comply with Directive 90/270/EEC on visual display units.

Data protection

The accord establishes that the employer has responsibility for taking appropriate measures to ensure the protection of data used and processed by the teleworker during the course of their work. The employer must also inform the teleworker of all relevant legislation and company rules in the area of data protection. This applies in particular to restriction on the use of information technology equipment or use of the internet and to the sanctions in the case of non-compliance. It is then the teleworker's responsibility to comply with these rules.

Equipment

One important issue to be regulated in the case of workers working remotely from office premises is the provision and maintenance of work equipment. The accord firstly states that all questions concerning equipment, liability and costs must be clearly defined before the teleworking arrangement commences. It states that, as a general rule, the employer is responsible for providing, installing and maintaining equipment necessary for regular telework, unless the teleworker uses their own equipment. The employer should also cover the costs directly related to regular telework, particularly those relating to communication. The employer should also provide the teleworker with technical support.

In terms of liability, the employer is responsible, in accordance with national legislation and collective agreements, for the costs of loss and damage to the equipment and data used by the teleworker. For their part, the teleworker must take good care of the equipment and must not collect or distribute illegal material via the internet.

Health and safety

This is another important area in the context of teleworking. The agreement states first that the employer is responsible for the health and safety of the teleworker in accordance with the 1989 framework health and safety Directive (89/391/EEC), its relevant daughter Directives, national legislation and collective agreements. The employer must also inform the teleworker of the company's policy on occupational health and safety, particularly in the case of visual display units. The teleworker then has the responsibility of applying these policies correctly.

The employer, workers' representatives and/or relevant authorities may have access to the place of teleworking in order to monitor whether health and safety provisions are being correctly applied. If this place of teleworking is the worker's home, access is subject to prior notification and the agreement of the worker. The teleworker is also entitled to request inspection visits.

Organisation of work

The teleworker is entitled to manage the organisation of their working time, within the framework of relevant legislation, collective agreements and company rules. The teleworker's workload and standards for performance must be equivalent to those of comparable office-based workers.

Isolation may potentially be a problem for teleworkers and the agreement therefore states that the employer must ensure that measures are taken to prevent this. These could include providing the opportunity to meet with colleagues regularly and allowing access to company information.

Training

The accord makes it clear that teleworkers should have the same access to training and be subject to the same appraisal policies as their office-based colleagues. In addition, they may receive appropriate training relating to the technical equipment they must use. Their supervisor and direct colleagues may also need training for this type of work and how to manage it.

Collective rights

Teleworkers should have the same collective rights as their office-based colleagues and there should be no obstacles hindering them from communicating with workers' representatives. Teleworkers should also be able to participate in and stand for election to worker representation bodies on the same basis as their office-based colleagues.

Teleworkers should be included in calculating the thresholds for worker representation bodies in accordance with European and national law, collective agreements and practices.

Finally, the accord states that worker representatives should be informed and consulted on the introduction of telework in accordance with European and national legislation, collective agreements and practices.

Implementation

The accord should be applied within three years of its signature - by 16 July 2005. The member organisations of the signatory parties will report on the implementation of the agreement to an ad hoc group set up by the signatory parties, under the responsibility of the social dialogue committee. This group will then prepare a joint report on implementation within four years after the signature of the agreement - by 16 July 2006.

Any questions on the content of the agreement can be referred to the signatory parties by their member organisations, either jointly or separately.

The signatory parties will review the agreement after five years - after 16 July 2007 - if requested by one of the signatory parties.

Implications of the agreement

Article 139 of the Treaty, upon which this agreement is based, states that once agreement has been reached by the social partners, it can be implemented in one of two ways. Either:

• in accordance with the procedures and practices specific to management and labour and the member states; or
• at the joint request of the signatory parties, by a Council decision on a proposal from the Commission.

As mentioned above, the previous three agreements concluded under the Article 139 procedures (on parental leave, part-time work and fixed-term work) were all implemented by Council decision, in the form of a Directive. However, this agreement is groundbreaking in that it is the first accord of its kind to be implemented through the other route offered by Article 139 - ie voluntarily by the members of the signatory parties.

It will be interesting to see how this will work in practice, given the diverse industrial relations and employment regulation practices in operation in the different EU member states. It is conceivable that it could be implemented through a national agreement in a range of countries where this is accepted practice, including Belgium, Italy and Spain. The social partners in countries such as Ireland and Finland might want to consider incorporating its provisions into their national incomes policy agreements, both of which are coming up for renegotiation towards the end of this year. In Germany, the national tripartite alliance for jobs (Bündnis für Arbeit) forum might be the appropriate place for discussion of the agreement's implementation. In France, the national-level social partners might want to negotiate an implementing agreement, particularly now the new government has indicated that it wishes to give fresh impetus to the national social dialogue process.

Implementation may be trickier in countries with more fragmented industrial relations traditions, principally the UK. There is, however, in theory nothing to stop national-level trade unions and employers - the TUC and the CBI - from negotiating a joint agreement on this issue.

One other potential problem with implementation by members of the signatory parties is the clause attached to many of the provisions in the agreement that implementation should be "in accordance with national legislation, collective agreements and practices". It is conceivable that there may be conflicting views between employer and trade union representatives about what needs to be implemented and to what degree, within the context of normal practices. This was certainly one cause for concern within the ETUC before the social partner negotiations began.

Finally, there is an issue relating to scope. It was clear that once the other three EU-level social partner agreements had been given legal underpinning by a Directive, all employers were covered by the agreement's provisions. In this case, however, implementation is the responsibility of the members of the signatory parties. Arguably this could mean that the agreement might not apply in workplaces where either the employer is not affiliated to the national organisation which is in turn affiliated to UNICE or CEEP, or there is no union which is a member of the national union which is in turn affiliated to the ETUC. Thus, a situation could develop where coverage becomes patchy, particularly in member states characterised by relatively weak trade union density and representation at the workplace.

It will therefore be interesting to monitor the progress of national implementing mechanisms. No doubt these questions and many more will be dealt with by the joint monitoring group set up to oversee and report on the implementation of the agreement.