As the telework during the COVID-19 pandemic does not perfectly fit with the existing legal systems of occasional or structural telework, employers and employees were confronted during the last year with the absence of a clear legal framework. The new Collective Bargaining Agreement no. 149 of 26 January provides a framework for employers and their employees to make proper arrangements on several aspects of telework.
Background and scope
The Minister of employment had requested the national social partners to find a solution in the National Labour Council. The initial talks stalled in December. However, a month later the social partners were able to conclude the national CBA no. 149 regarding “recommended or mandatory telework due to the corona crisis”. This CBA is applicable to the private sector and certain companies, which fall under the scope of the Act of 5 December 1968 regarding collective bargaining agreements. Therefore, the CBA does not apply to most of the public sector, yet its provisions can serve as an inspiration.
The CBA has entered into force on 26 January 2021 and will cease to apply after 31 December 2021.
CBA no. 149 is clearly a compromise between the social partners. Most of its provisions do not include clear obligations or rights for employers and employees. Instead, they are requested to make proper arrangements regarding several aspects of labour law. The CBA is also suppletive, which means that it will only apply when the rules for structural or occasional telework are not used or whenever the company does not have any agreement between the employer and employees relating to telework, which was concluded or introduced prior to 1 January 2021. The CBA also does not preclude companies from introducing a permanent system of structural telework for the future (according to CBA no. 85).
The arrangements made in execution of CBA no. 149 can be laid down in a company level CBA, in the internal work rules, in a telework policy or in individual agreements with employees. These arrangements or rules can be introduced in a flexible manner, but with respect for social dialogue, and they have to be communicated clearly to the employees (a digital method of communication is accepted).
Equipment and costs
According to Article 6 of CBA no. 149, the corona teleworker has the same rights and duties regarding his working conditions as would be the case when he would work at the employer’s workplace. In light of this, Article 7 of CBA no. 149 states that the employer and employees need to make arrangements on:
- The provision of the necessary telework equipment (e.g. laptop) by the employer and technical support.
- A possible compensation in case the employee uses his own equipment or to compensate the acquisition or use of necessary IT tools.
- The compensation of additional communication costs (e.g. internet).
This does not mean that the employer, per se, needs to provide equipment or that he has to compensate all of the costs, but arrangements need to be made (taking into consideration the global framework of costs and compensations).
With regards to working time, Article 8 of CBA no. 149 states that the teleworker can manage his work during the working time duration that is applicable in the company. This means that the usual daily (e.g. 7 hours and 36 minutes) and weekly (e.g. 38 hours) working time will continue to apply. The workload should be the same as would be the case at the workplace of the employer. In addition, Article 11 clarifies that the employer and teleworkers can discuss or make specific arrangements regarding the work schedules. In absence of such arrangements, the normal work schedules continue to apply. There can also be arrangements regarding the reachability of the teleworker. In this way, they can define timeframes during which the teleworker needs to answer his mails or phone and other timeframes during which this would not be the case, in order to find a balance between the teleworker’s professional activities and his private life. Some have argued that this provision entitles workers to a so called “right to disconnect”. This is not the case here, as the CBA merely requests a discussion or arrangements on the reachability, and this only relates to the reachability during the normal duration of the work within the company.
Monitoring, privacy and data protection
Article 9 of CBA no. 149 allows the employer to conduct appropriate and proportional checks on the results and the execution of the work. The employee should be informed of the control method that is used. In any case, this monitoring should respect the right to privacy of the teleworker (including the provisions of CBA no. 81 on the monitoring of electronic communication) and the GDPR. Although mentioned in Article 11, §2, which refers mostly to working time, the employer and teleworkers can also discuss the specific rules regarding the monitoring of the results which need to be achieved, and the criteria which will be used to evaluate the performance of the teleworker.
At the same time, Article 9 also includes a duty for the teleworker to safeguard the protection of the professional data of the company when working remotely. In light of this obligation, the employer needs to inform the worker of the relevant company rules and guidelines concerning data protection and the use of IT tools.
According to Article 10 of CBA no. 149, the collective rights applicable at the workplace continue to apply for teleworkers. In particular, the teleworker has the right to consult or communicate with workers’ representatives. These workers’ representatives (representatives in the works’ council, health and safety committee and the members of the trade union delegation) need to receive the necessary facilities and digital tools to effectively communicate with the employees.
Well-being at work
Article 12 of CBA no. 149 provides that teleworkers shall receive information on the company’s well-being policy regarding telework. This should include prevention guidelines on the adjustment of the workstation (in light of ergonomics), the correct use of screens and technical support. These guidelines should be based on a risk analysis, which also takes into account the psychosocial dimension and health aspects of telework, including the possibility to start an informal or formal intervention. In light of this, the employees should be able to contact their superiors or the competent prevention advisors.
Finally, Article 15 points to the psychological aspects of telework, as it asks the employer to take appropriate measures to maintain the connection between the teleworkers and their colleagues and to prevent isolation. In this regard, a company could organise “come back” moments during which teleworkers can come to the company, while respecting the sanitary measures.