Social partners sign teleworking accord

In July 2002, the central EU-level social partners signed a framework agreement on the regulation of telework. The accord, which will be implemented by the members of the signatory parties, regulates areas such as employment conditions for teleworkers, health and safety, training and collective rights. It also provides a definition of telework.

On 16 July 2002, the central EU-level social partner organisations formally signed a new EU-level framework agreement on telework. The signatories were: the European Trade Union Confederation (ETUC); the Council of European Professional and Managerial Staff (EUROCADRES)/European Confederation of Executives and Managerial Staff (CEC) liaison committee; theUnion of Industrial and Employers' Confederations of Europe (UNICE)/the European Association of Craft, Small and Medium-Sized Enterprises (UEAPME); and the European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP). The conclusion of this accord represents the culmination of consultation and debate on this topic over the past two years. According to Anna Diamantopoulou, the commissioner for employment and social affairs: 'This is a landmark deal. Not only will this initiative benefit both workers and businesses, but it is the first European agreement to be implemented by the social partners themselves. This shows the coming of age of European social dialogue.'

Social partner consultations

Telework is a form of working which has been increasing substantially across Europe in recent years - the European Commission estimates that there are currently 4.5 million employed teleworkers (and 10 million teleworkers in total) in the EU. Over the past 18 months, it has been the subject of two European-level sectoral agreements in the form of guidelines, the first negotiated in February 2001 in the telecommunications sector (EU0102296F) and the second negotiated in April 2001 in the commerce sector (EU0105214F).

Against this backdrop, the European Commission began to look at the issue of telework around two years ago. Using the procedures provided for by Article 138 of the Treaty establishing the European Community (TEC), it issued a first consultation paper to the EU-level social partners in June 2000 on the issue of 'modernising and improving employment relations' (EU0007259N), within the context of the conclusions of the March 2000 Lisbon European Council summit (EU0004241F), which reinforced the commitment of EU governments to make the EU economy the most dynamic in the world by 2010 and to involve the social partners in this process.

In this consultation, the Commission asked the social partners for their views on ways in which employment relations could be modernised and improved, concentrating on two particular issues:

  • so-called 'economically dependent workers', defined as workers who, although they are not employees in the traditional sense, nevertheless rely upon a single source of employment (TN0205101S); and
  • telework.

The Commission asked the social partners 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.

After gathering the views of interested parties, the Commission issued a second consultation paper in March 2001 (EU0104205N). This time, it focused solely on the issue of telework. It asked the social partners to consider a number of basic principles as a potential basis for developing a framework to govern this form of working.

ETUC expressed its desire to negotiate a European-level social partner agreement on the issue of telework, under Article 139 of the TEC. It hoped at the time that such an agreement could follow the format of previous EU-level social partner framework agreements - the 1995 parental leave agreement, the 1997 part-time work agreement (EU9706131F) and the 1999 fixed-term work agreement (EU9901147F) - which had subsequently been given binding legal effect by a Council of Ministers decision in the form of a Directive.

However, UNICE was less willing to enter into negotiations over a binding agreement on telework. It announced on 8 March 2001, just 11 days before the Commission issued its second social partner consultation, that it was prepared to enter into EU-level negotiations on a voluntary agreement. After an exchange of letters between ETUC and UNICE, in which ETUC sought assurance that if an EU-level agreement on telework were not to be legally binding, there would be some guarantees that it would be adequately implemented in EU Member States, the social partners announced on 20 September 2001 that they were entering into negotiations with the aim of concluding a voluntary agreement on teleworking. Negotiations opened on 12 October (EU0111102N).

The agreement

The social partners negotiated for a total of eight months, following which an agreement was reached on 23 May 2002 and formally signed by the bargaining parties on 16 July 2002.

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 a way in which workers can improve their work/life balance and achieve a greater autonomy in the workplace.

It states that this accord 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 make it clear that implementation of the 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. The text also states that care should be taken to avoid unnecessary burdens on small and medium-sized enterprises (SMEs) when implementing this agreement.

The agreement's detailed provisions are as follows.

  • Definition and scope. Teleworking is defined 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.
  • Voluntary nature of telework. Where 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. The decision to opt for telework is reversible by individual and/or collective agreement, at either the employer's or the worker's request, with the details to be established by individual and/or collective agreement.
  • Written information. The employer must provide the teleworker with written information in accordance with the EU Directive (91/533/EEC) on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship. This includes information on applicable collective agreements and a description of the work to be performed. 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 should not be a reason for terminating the employment relationship or changing that worker's employment terms and conditions.
  • Employment conditions. Teleworkers should benefit from the same rights, guaranteed by legislation and collective agreements, as comparable office-based workers. However, due to the nature of the work, complementary collective and/or individual agreements may be necessary.
  • Monitoring. The privacy of the teleworker must be respected by the employer. If a monitoring system is put in place, it must be proportionate to the employer's objective and comply with the EU Directive (90/270/EEC) on visual display units.
  • Data protection. The employer has responsibility for taking appropriate measures to ensure the protection of data used and processed by teleworkers 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 the teleworker's responsibility to comply with these rules.
  • Equipment. All questions concerning equipment, liability and costs must be clearly defined before the teleworking arrangement commences. As a general rule, the employer is responsible for providing, installing and maintaining equipment necessary for regular telework, unless teleworkers use their own equipment. The employer should also covers the costs directly related to regular telework, particularly those relating to communication. The employer should also provide the teleworker with technical support.
  • 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. However, the teleworker must take good care of the equipment and must not collect or distribute illegal material via the internet.
  • Health and safety. The employer is responsible for the health and safety of the teleworker in accordance with the 1989 EU 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. Teleworkers are 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. The employer must ensure that measures are taken to prevent isolation of teleworkers. These could include providing the opportunity to meet with colleagues regularly and allowing access to company information.
  • Training. 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. 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 agreement states that it should be applied within three years of its signature - ie by 16 July 2005. The member organisations of these signatory parties will report on the implementation of the agreement to an ad hoc group set up by the signatories. This group will then prepare a joint report on implementation within four years after the signature of the agreement. 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 if requested by one of the signatory parties.

Commentary

The conclusion of this agreement is an innovative development in terms of the European-level social dialogue, in that it is the first time that a cross-industry EU-level framework agreement is to be implemented by the members of the signatory parties rather than by an EU statutory instrument.

Article 139 of the TEC allows for two options for implementation of framework agreements negotiated in this way - either by a Council decision or 'in accordance with the procedures and practices specific to management and labour and the Member States'. The three previous cross-industry framework agreements were all subsequently given legal effect by a Council decision in the shape of an EU Directive. However, in this case, the signatory parties have taken advantage of the other option provided for by Article 139, with the result that there will be no Directive issued to give legally binding force to the agreement.

Before agreeing to take part in the negotiations, ETUC was concerned about implementation issues, arguing that implementation may not be as complete as it would be if this were a legally-binding accord. Further, as industrial relations practices vary between EU Member States, implementation may differ significantly. At the time, UNICE argued that the signatory parties will, by virtue of negotiating and signing the agreement, be responsible for ensuring correct implementation by their members, which will be sufficient to ensure that this takes place. Time will tell whether or not implementation will be smooth. There is in any case room for review after five years if any elements of the agreement or its implementation are found to be unsatisfactory. (Andrea Broughton, IRS)

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