The latest text by economist Susana Peralta has generated a lot of reactions, possibly due to the shameless way she called teleworkers, who were well placed in life as “bourgeois teleworkers” and who, precisely because they had not lost any income during the crisis, I am not an economist, nor do I have the competence to comment on the goodness of such a measure, but I am an employment lawyer interested in reflecting on the conditions of the many thousands of workers who are theirs as a direct result of the pandemic Started to do chores from home or elsewhere than usual.
There will be two different types of situations: those where, once the childbirth is over and the pandemic is resolved, employers will want to return workers to their original jobs, and those for whom this new reality has become final. Now, if in the first case the situation, however long it may be, will always be temporary and, in this sense, more or less bearable by raising temporary challenges, in the second case this will not be the case and the legislature should regulate this Do it well and quickly. At the risk of running the risk of a new breed of worker being imprisoned in their own homes, with limited rights and, what is more serious, with little or no evidence to back it up.
The current legal system from the beginning of the century is based on two basic assumptions: (i) the perishability of teleworking and (ii) the voluntariness of teleworkers. In reality, this scheme was developed avant la lettre at a time when, statistically speaking, the number of teleworking situations was less than the rest of the situation. It is enough to read the few articles of the Labor Code to conclude with this in mind. Put simply, the regime was designed for situations in which more than the will of the employer counted that of the employee and thus could temporarily develop his work from the comfort of his own home. However, as a result of the drastic changes brought about by the pandemic, current reality has shown that what has been thought today in a given context has very poor practical application, mostly to the detriment of the workers themselves, creating a major legal loophole leaves that lingers to be filled.
I’m not even talking about the big problem that often arises from the coexistence of teleworkers and their families (especially when several generations live together in the same room), which in practice objectively prevents the work from being done satisfactorily.There is a problem without a number of questions in the area of teleworking, of which I will highlight just a few as examples: How to combine teleworking with fixed schedules (specify); how to ensure compliance with regulations on working conditions and health and safety at work; how to define overtime and night work; how to deal with the multiple impacts arising from the concept of the workplace, mainly for travel purposes; What is the coverage for the industrial accident insurance? How do you define the absenteeism and temporary incapacity regime? how to deal with problems arising from the work tools required to perform the contracted functions; How to account for the increased cost of doing their duties at home for workers when they would otherwise be at the employer’s place of work? In fact, there are a multitude of questions that arise from this reality and that under current law find no answer or a very poor answer.
On the other hand, teleworking has emphasized the less human side of the provision of work. When they disappear from the employer’s point of view and thus become almost irrelevant, they will begin more than ever to count the results presented by the professional to the detriment of their own condition as a person and as an employee. Situations that are taken into account in the context of a personal regime are usually taken into account: personal or family problems, any illness that does not prevent the provision of work, a simple bad mood resulting from such an episode that happens to the worker is. Anything that affects work performance in a physical environment and is secondary or invisible in the context of teleworking, causing results to be overestimated to the detriment of everyone else. The famous delivery, as the teleworking bourgeoisie like to call it, will become even more important. Now I do not believe that situations in which teleworkers are exposed to an important bundle of their rights will be of benefit to society, not even employers, who, if the current legal system is not changed, will certainly increase absenteeism and absences will experience and labor disputes.
Here and now there is an opportunity to make an important qualitative leap. Not to miss this opportunity is primarily the responsibility of those who rule us through defining a clear, secure legal framework that emerges from deep reflection
Teleworking requires a high degree of maturity on both sides of the relationship, which I fear is not present in an important part of the existing employment situations in our country. In order for teleworking to be implemented successfully and to be a genuinely alternative model to the previously applicable model, it is necessary that there is mutual trust between employers and employees and that the cat and mouse model on which part of the industrial relations is based is based on which both parties constantly observe when they “chase” the other, cease to exist and give way to a model based on responsibility and trust. However, this requires that anyone who defines the way the work is done – the employer – shows signs of this responsibility and seeks to ensure the conditions under which teleworkers can properly perform and treat their functions Not as mere tools to achieve results, but as real people who, although not physically present in organizations, continue their personal life – and now their own living context as well – and shape the professional life and the results that are to be achieved .
Indeed, teleworking should not be viewed as a mere job change. It is a true paradigm shift with the profound changes that every paradigm shift requires. Just trying to adapt the current regime to this new reality will be a mistake and a missed opportunity. And it is even more worrying to give a signal to all actors in the workplace – employers and employees – that there is no need to develop their point of view. The boldness and at the same time the need would be to innovate legislatively and think about new solutions to new problems. Here and now there is an opportunity to make an important qualitative leap. Not to miss this opportunity is primarily the responsibility of those who rule us through defining a clear, secure legal framework that emerges from deep reflection. Let’s see what comes out of what is being worked on.