Telework
Regulation and Social Dialogue
Hans-Jürgen
Weißbach
This report has been produced with the
support of the European Commission, DG Employment and Social Affairs, under the
European Social Fund (article 6). Views expressed within the report are those
of the author and do not reflect the views of the European Commission.
Euro-Telework
Hans-Jürgen Weißbach © November 2000
http://www.euro-telework.org
CONTENTS
0. EXECUTIVE SUMMARY
1.
INDUSTRIAL RELATIONS AND THE ISSUE OF TELEWORK
2. Trends in the regulatory system and the Development of systems of social dialogue
2.1
Decentralisation and 'informalisation' of work
2.2
Indicators of a re-centralisation of industrial relations
2.3 The need for social dialogue and concerted action
3.
Problems with
regulating new types of work
4. NATIONAL FRAMEWORK AND INSTRUMENTS FOR REGULATING TELEWORK
4.1
Increasing attempts at government intervention and legal regulation: the cases
of Italy and France
4.2 Stable corporatist schemes in
Germany and Austria. Will telework fit in?
4.3 Liberal regulation schemes in
the Nordic countries and the Netherlands: great concern about social and health
issues
4.4
Traditional homeworking as a basis for regulating telework: the case of Finland
4.5
Social dialogue and social pacts in many European countries, yet no visible
impact on telework
4.6
Deregulation and lack of union influence: the development of private placement
and support structures in the UK and Ireland
4.7
The weakness of collective bargaining and legislation in Spain, Portugal,
Greece, Belgium and Luxembourg
4.8 Cross-border issues
5. AIMS AND ISSUES OF COLLECTIVE AGREEMENTS
5.1
Aims of introducing telework
5.2
Work spaces and the workplace
5.3
Starting and finishing telework
5.4
Status of employees and individual amendments to the working contract
5.5
Organisation and type of telework
5.6
Qualifications and preparation for telework
5.7
Working time
5.8
Control
5.9
Participation of teleworkers in the company's communication system
5.10
Special provisions for women
5.11
Special provisions for people with disabilities
5.12
Cost
5.13
Responsibilities and duties of teleworkers
5.14
Access of Works Council representatives to the workplace
5.15
Information and participation rights of representatives and co-management
5.16
Dispute resolution
5.17
Direct participation by teleworkers
5.18
Trade Union rights
5.19
Health and safety
5.20 The impact on other agreements
6. Sectors
covered by telework agreements
6.1 The public sector
6.2 The private sector
7. Open
questions and neglected problems
8. COMMON TRENDS AND DIVERGENCES
9. BIBLIOGRAPHY AND REFERENCES
10. RECOMMENDATIONS
0. EXECUTIVE SUMMARY
Analysis of the legal
framework of conditions and collective agreements regulating teleworking in 16
European countries shows a very varied picture. The concept of teleworking has
not been incorporated into legislation, nor is there a standard transnational
definition of it. Instead, the countries studied manifest major cultural
differences.
1. In Germany, Austria and
Denmark, and also in France, teleworking is understood as alternating
teleworking, from 1-2 days a week upwards.
In UK agreements and
contracts, teleworking virtually always means teleworking at home, with over
50% of working time spent at home.
In the Romance countries, for
regulatory purposes teleworking is primarily understood as meaning work
performed in various organisational forms (tele-centres, call centres and
teleworking at home) with the aid of information and communication technologies
(ICTs).
In the Nordic countries, but
not in Germany, Austria, Italy or France, teleworking also includes, in
particular, numerous forms of mobile work, which is in fact even more common
than teleworking or alternating teleworking.
2. If teleworking is
regulated at all, it is regulated on a variety of levels. In addition to
statutory regulation, it is regulated by associations of the social partners at
sectoral or branch level, agreements between trade unions and companies,
agreements between companies and elected bodies representing employees (or
Works Councils or staff councils in the context of statutory rules on
participation), departmental agreements and, finally, by individual contracts
of employment or supplements to them.
3. While the industrial
relations system was 'systemic' until the 1980s (i.e. it was geared to possible
disputes, for which regulations were drafted ex ante), the present time
is dominated by a highly 'situative' approach that only takes up actual
disputes and abstains from systematic ex ante regulation of every
conceivable dispute. Throughout Europe, this is associated with a trend towards
decentralisation and individualisation of negotiation of working conditions.
This is criticised to some extent owing to the dissolution of uniform social
standards, and to some extent it also involves opportunities for employees as a
result of negotiations of working conditions close to the workplace, and the
influence of highly skilled groups with strong representation. The use of ICTs
contributes to these trends.
Decentralisation and
individualisation are proceeding more rapidly in the field of teleworking than
in many other areas of regulation of working conditions. This is linked to the
fact that teleworking plays an important part not only in the rapidly growing
segment of ICT enterprises in particular, where there is little union
organisation, but also in financial services, where the same is true in many
European countries. To take one example, in Germany, more than 1000 collective
agreements on the introduction of flexible working hours have been recorded,
but there are only about 70 on the introduction of teleworking.
4. At the same time, there
are counter-trends supporting recentralisation of the regulation of
teleworking. On the one hand, negotiations are being centralised as a result of
potential union mergers (e.g. Ver.di in Germany) or following strong union penetration
into the 'industrialising' service sector (e.g. HK in Denmark and MSF in the
UK). On the other hand, in Italy, France and Denmark, for example, the state is
actively intervening in the process of introducing and implementing
teleworking, and by means of legislation, the civil service's pilot function or
the initiation of social dialogue on implementation of an open and socially
sustainable information society, it is working towards the centralisation of
societal activities aimed at comprehensively safeguarding teleworking as an
institution. Even small enterprises with a low level of union organisation must
be extremely interested in negotiating with strong, competent partners who
genuinely represent employees on regulating teleworking issues. The unions are
still the most competent partners for this purpose: special associations of
teleworkers have not yet been able to assert themselves as negotiating
partners.
5. All in all, however, there
is no strong empirical evidence that contractual or statutory forms of
regulation of teleworking in Europe are converging. We still encounter
traditional historically, politically and culturally based forms of regulation
which are to a great extent resisting standardisation in line with the pressure
to conform exerted by globalisation and ICTs.
·
Germany and Austria are still examples of
countries with solid institutionalised multilateral participation
('corporatism'), where in large companies (less so at sectoral level) the
subject of teleworking is for the most part successfully dealt with by the
relevant industrial representation mechanisms, and at the expense of
unregulated 'grey areas' or a 'black economy' in teleworking, mainly in small
companies.
·
In France and Italy, legislation and
national policy are exerting an increasing influence, and are endeavouring in
particular to influence the implementation of teleworking via the civil
service. There are also collective agreements (some at sectoral level) that
frequently include several trade unions. This is at the expense of the
extremely general nature of the formulas agreed, which must then be made
specific at local level or occasionally even circumvented. Here, the influence
of the unions appears to be decreasing in comparison with that of the state.
·
In the Nordic countries, we find old
systems of collective bargaining which are, however, acquiring new content as a
result of widespread centrifugal trends under the influence of unionised,
highly skilled, white-collar workers (white collar unionism), which allow ample
scope for local negotiation on teleworking by groups with strong
representation. Finland is in a special position with its efforts to regulate
teleworking in a highly individualised, graduated way, within the framework of
traditional legislation on homeworking. So too is Denmark, where the commercial
and service workers' union has succeeded in establishing priority for
collective agreements over individual employment contracts in framework
agreements with public and private employers: this is a unique initiative in
Europe, and has happened in a small country where it potentially affects 1m
employees.
·
We also find relatively 'new' systems of
collective bargaining in Spain, Portugal and Greece, either associated with
strong tendencies to deregulate the labour market, which also affect
teleworking (Spain), or in which teleworking is not yet an important subject.
In some of these countries and also in Ireland, intensive social dialogue is
already under way in respect of socially sustainable implementation of the
information society.
·
In the United Kingdom, collective
bargaining mechanisms have been weakened to such an extent that, given the
widespread nature of teleworking, they play only a minor part, except in some
areas of the financial services sector. Here, the individual contract
predominates, but this too has its advantages (e.g. a high level of precision
as regards regulation of working hours, and reimbursement of costs). In the
Netherlands, too, we find strong tendencies for teleworking to be deregulated
and individualised. In Belgium, while all laws remain in force and new laws
have even been introduced, we can speak of 'crypto-deregulation', occurring via
homeworking, for example, with teleworking being primarily regulated by
in-house confidential agreements.
6. To summarise, it can be
said that countries with a very strong culture of collective bargaining have
not made much headway with regard to Guideline 17 of the Luxembourg Process,
and have mainly ignored the problem of teleworking, while that of part-time
work is frequently widely discussed. In contrast, countries where the tradition
of collective bargaining systems is less strong have often progressed further
down this path. Unlike traditional industrial relations problems, the problems
of social openness of teleworking infrastructures, of gaps in qualifications
and equal opportunities in access to teleworking have hardly been addressed by
traditional bargaining systems.
7. Thus the content of
collective regulations largely converges, although large-scale agreements are
often less specific than company agreements (Denmark is again an exception).
Therefore the regulations achieved largely meet needs, even if in some cases
they affect only a minority of practising teleworkers, as in Germany, Austria
and the Netherlands. However, it would appear to be more important to draw
attention to the gaps in the regulations: in almost all agreements, little
attention is devoted to skills training and familiarisation, the right to
complain about non-acceptance of an application for teleworking, equal
opportunities, staff and career development, and monitoring of the social
consequences of the development of teleworking. Here, legislative initiatives
appear more likely to be in place.
1. INDUSTRIAL RELATIONS AND THE ISSUE OF TELEWORK
The concept of industrial relations (IR), or labour relations, is used
not only to describe relationships between employers and trade unions, but also
relationships that involve governments. They seek to define policies dealing
with labour problems, employees, their needs, and requirements relating to
telework.
Within a period of over 100 years, a 'systemic' approach to industrial
relations has developed in Europe as a result of the experience that industrial
disputes are likely to occur wherever there is contracted labour. A system of
industrial relations includes a set of legal definitions, rules and methods to
deal with industrial disputes that can be expected in each industrial labour
system (e.g. to settle wage disputes, regulate working time, or determine
government intervention in disputes). It follows that it is more or less based
on the assumption that contracted labour is typically applied in a low trust
situation. Therefore clearly fixed ex ante rules anticipating these
conflicts should be established by law and by negotiation, but instead each
situation and each conflict is dealt with ad hoc. These rules may be
fixed by labour legislation (a unilateral system), by industrial and firm
agreements (a multilateral or 'corporatist' system), or by a mixture of both.
Generally speaking, in countries like France where industrial relations have
been strongly regulated by the government, we do not find so many industrial
agreements. The opposite also applies.
In most member states of the EU, rules for industrial relations and
systems of workers' representation have been established by law: they all have
to regulate concrete issues of labour relations in the light of the local
situation. Accordingly, a 'situative' approach to industrial relations has
developed; this has been based on the existence of accepted legal or factual
bodies representing the workers, on their participation, and on the ability of
highly skilled workers to negotiate their own affairs. The 'situative' approach
may be characterised by the assumption that the local intervention of
collective bodies is a substitute for much detailed regulation, and that this
intervention is a) only necessary in certain situations and b) closely related
to workplace issues. This approach is often implemented under conditions of a
high trust atmosphere, and relies strongly on ad hoc methods of settling
disputes.
It follows that IR involves:
·
rules for labour and employment
management
·
more or less detailed rules for
bargaining systems at a central or local level, and methods defining these
rules
·
a typology of actors (employers and
workers, as well as their organisations and representatives, but also
public actors and other institutional bodies) underlying the rules of the
system, and a definition of people who are not part of the system (e.g.
self-employed workers)
·
rules for processes of interaction between
these groups (either pure information or negotiation; or either participatory
or conflictive relations)
The rules and interaction processes may be standardised in the case of
the systemic approach, or more informal in the case of the situative approach.
During the 1970s and 1980s, the trend was towards a systemic approach
that included ex ante regulations for all types of conflicts; however,
recent trends have revealed a need to modernise the institutional framework of
working life. Labour law based on the standard model of full-time,
workplace-based employment of indefinite tenure can no longer respond to the
needs of the information society. At the same time, the loss of security that
workers in many sectors feel must be confronted by a more appropriate and
flexible legal and contractual framework.
In small and rapidly growing sectors (e.g. the New Economy)
particularly, detailed ex ante regulation is often regarded as
unnecessary, or even as an obstacle to economic development and to the
development of high-trust relations in the company. Employees more often feel
that they are strong enough to negotiate their issues individually or at a
workplace level, or that they have very particular issues to negotiate which
traditionally have not been on the social partners' agenda. An increase in the
amount of self-employment or 'autonomous work' has reinforced this trend.
'Wage employment and self-employment are tending to converge, rendering
the scope of labour law unclear and reducing its effectiveness in certain
fields (non-standard contracts, telework and work which is outsourced or
externalised).' (European Commission, 1996: 34)
Accordingly, IR collective systems are undergoing change, but the speed
of this change and the depth of the integration of the traditional system in
society as a whole varies from country to country, and it is therefore quite
difficult to describe common European trends.
There are traditional and stable multilateral participation structures
that have a fairly tight network of rules (e.g. 'corporatist' systems in
Austria and Germany), systems with a similarly long tradition but quite new
content (e.g. the Nordic countries), more recently established systems that are
not so strictly regulated as the traditional ones (e.g. Spain, Portugal and
Greece), collective systems in decline because of strong deregulation
tendencies (UK) or due to increasing individualism in society (the
Netherlands), and mixed systems that include weakening corporatist elements and
increasing government intervention in rapid transition (e.g. France and Italy).
Particularly when industrial relations interact with new information
and communication technologies (ICTs), the traditional framework of the
systemic approach changes dramatically.
In fact, ICTs:
·
pervade all sectors horizontally, and
increasingly link them reciprocally
·
are dynamic, that is to say they rapidly
innovate, destroy and create enterprises, types of work, and jobs: the average
'lifetime' of a job is 4-5 years, compared with about 20 years a generation ago
·
are labour- and capital-saving, and above
all flexible (i.e. suitable for many purposes)
·
support multi-space and remote work,
outsourcing, and individualisation of the workforce
So a problematic aspect of the debate on the role and content of IR is
the need for a constant and stable 'systemic' framework that conflicts with:
·
the continuous process of workplace
transformation in respect of type of work, time and space
·
the loss of bargaining power of the
collective actors in the new expanding sectors of the economy, due to the
ongoing 'downsizing process' (Hepworth and Ryan, 1996)
·
a high degree of individualisation in
these industries
The application of ICTs, the needs of a constantly reorganising
production, and the importance of flexibility for the companies'
competitiveness on international markets all have a significant impact on the
system of collective labour and on trade union activities. We are witnessing an increase
in the number and importance of workers whose status on the labour market is
uncertain. There are many and varied examples of this trend,
especially if we look at people working with ICTs (mainly teleworkers). They
include:
·
employees who also work on a freelance
basis (sometimes preparing to become small-scale entrepreneurs)
·
people who have formally withdrawn from
the labour market by taking early retirement, and who then find employment in
the informal economy
·
freelancers who often have a regular and
stable working relationship with a particular company
·
students working part-time
·
people doing remote work under new
working conditions without the unity of time and space
What these 'atypical' forms of work have in common is their uncertain
status on traditional labour markets and in the social security system. Finding
a harmonised
balance between flexibility of working conditions and social security is therefore a crucial issue within telework. Another issue is how to
prevent employers unilaterally changing working conditions, disregarding the needs of teleworkers, and even taking advantage of
their individualised working situation and forcing them to accept worse
conditions then regular workers. A third issue involves making sure that these
workers are included
in the system of collective representation, and
that representatives of trade unions or Works Councils have access to them.
Telework in all its forms challenges trade unions to develop new
organisational methods and tools for servicing their members' needs, and to
update their present ways of working. The role of teleworking, and various
aspects of its flexibility, constitute an important item in recent debates on
IR and social dialogue. We are convinced that modern IR can support (and be
supported by) social dialogue and the evolution towards new economic and social
conditions. But this requires a thorough analysis of the new situation in all
its aspects and from all points of view; it also requires flexibility in the
methods and the tool-designing of the various partners.
The Delors White Paper on Growth, Competitiveness, Employment
(1993) specifies telework as the first of four 'priority applications' of
telematics; this was repeated in a report to the European Council by a High-Level
Group on Europe and The Global Information Society (1994) that described
telework as 'the first of ten applications to launch the information society.'
Some of the ideas of this report have been criticised and developed further in
a paper by Ursula Huws (Telearbeit: Vertiefende Untersuchung zum Weissbuch
1995), which shaped the agenda for the ensuing debate. Realising that telework,
mostly on an informal level, was developing at high speed and turning into a
'critical mass' (Di Martino, 1997) without far-reaching regulatory processes
being introduced at the same time, the Draft Report of the Information Society
Forum (January 1996) stressed that telework 'requires different social and
legal frameworks'. The ILO also focused on homeworking in the 22 June 1996
Geneva conference, and adopted a Recommendation and a Convention on
homeworking. The conference did not succeed in producing a detailed regulation
of (tele-)homeworking, but established the rule that each member state should
adopt, implement, and periodically review a national policy on homeworking,
thereby improving the situation of homeworkers (Di Martino, 1997: 12).
2. TRENDS IN THE REGULATORY SYSTEM AND THE DEVELOPMENT OF SYSTEMS OF SOCIAL DIALOGUE
What we do not yet know is whether the application of ICTs is promoting
convergence or divergence in European systems of industrial relations. We can
see that using ICTs reinforces the spread of part-time, 'atypical', or
'contingent' work. This could be an indicator at least of increasing internal
divergence within the national systems of IR; however, it could also weaken the
position of trade unions in that they have become more heterogeneous and less
representative of entire workforce, compared with the 1970s or early 1980s (see
Waddington et al, 1997: 466). It may also make it easier to shift labour to
places with the lowest wages and the most flexible regulatory framework.
However, international comparisons provide no evidence that differences
between European systems of IR have become more acute under the influence of
ICT, although there are no indicators of a rapid convergence process either.
This is supported by examples. Some European countries like Spain have achieved
great workforce flexibility despite the fact that ICTs are not so widely used
as in other European countries: on the one hand, Spain has the highest rate of
limited short-term working contracts of all European countries (clearly, this
has nothing to do with the introduction of ICT, but with high youth unemployment);
on the other hand, Portugal has adopted some elements of traditional
corporatist systems in combination with increased government regulation, but
the socio-economic situation is not very different from that in Spain. To take
another comparison, the system of negotiations in Sweden is decentralised,
while Denmark has re-centralisation under the influence of some government
pilot agreements and a strong trade union movement, yet the number of
teleworkers is similarly high in both countries.
We can therefore assume that there is no automatic transformation of
labour relations under the impact of new ICTs. For cultural and political
reasons, there is still a large variety of solutions which also reflect
attempts to regulate the use of ICTs in working processes.
In some European countries, the fact that people do remote work that is
mediated and controlled by ICTs triggers legislation, political intervention or
the involvement of workers' representatives; in others, action is triggered by
the fact that they work primarily at home. In some countries, the assumption
that people who do remote work are more autonomous than other workers is a
reason for excluding them from social insurance schemes; in others, they are
deemed to be 'false self-employed' workers who have to be insured by their
companies.
Moreover, the way that telework is regulated in many European countries
differs strikingly from the way other new forms of work organisation (e.g.
flexible work hours, group work, and new team-based incentive systems) are
regulated. Generally speaking, the level of institutionalisation of collective
agreements on telework is lower than the level of other types of agreements on
wages, working conditions and new types of work organisation; this is because only
small groups of employees in a company do teleworking. This is also a
consequence of the explicit aim of individualising work organisation through
the introduction of telework, a process which is supported by decentralised
ICTs (Spaeker, 2000). In Germany, there are 15 times more agreements on
flexible working hours than on telework (Kamp, 2000).
However, globalisation and the 'new economy' emphasise the need for a new labour
regulation framework. In fact, it is beginning to
be shaped at European level and, through transnational comparison, many unions
can now understand the European dimension and are able to represent groups of
transnational workers as a whole. The most relevant, historical example of
these new tools is European Directive 94/45 (22 September 1994) relating to the
setting up of 'European Works Councils' and procedures for information and
workers' consultation in companies or groups of companies with a European
dimension. The problem now is how to develop the negotiating agenda between employees
and employers, because globalisation of the economy can modify transnational
companies' strategies related to labour market in consequence.
A very recent indication of the need for a new regulatory framework to
cater for the diffusion of telework or, more generally speaking, of networked
labour, is a clear demand from the Commission's Communication: Strategies for
job creation in the Information Society (7 February 2000: 19-20; see http://europa.eu.int/comm/dg05/index_en.htm):
'One of the more visible indicators of changes in work organisation is
the use of telework. With an appropriate framework, which guarantees rights and
obligations for teleworkers and their employers, telework will increase…
Recommendations
to social partners: Set-up framework conditions
and practical arrangements to enable telework to take place on a wide scale.
Timing: End 2000.
Indicators: coverage of collective agreements on telework.'
It is remarkable that the 'coverage of (European)
collective agreements on telework' is the objective entrusted by the Commission
to 'Euro-Telework', the MIRTI On-Line Project.
2.1 Decentralisation and 'informalisation' of work
The trends described below show that apart from Germany, Austria, and
maybe Finland, the regulation of telework has not yet been embedded in the
general 'systemic' frameworks of industrial relations in European countries,
but rather tends to reinforce the 'situative' approach to regulation.
Even in countries with a high regulation density like Austria and
Germany, the average institutional level of telework regulation is usually
lower than that relating to other new forms of work organisation like group
work in production (see Juraszovich et al, 1999). Moreover, collective agreements
on telework are in the process of ongoing decentralisation,
and the implementation of
telework itself is in the process of informalisation. The
work situation of teleworkers is often non-transparent and highly
individualised, in the sense that there are no collective agreements for their
sector, company or job. Indicators of decentralisation and informalisation
trends include:
·
the process of 'downsizing' European
industry, and of splitting companies into smaller units on the basis of ICTs
continues (it started during the 1980s in the UK and then 'marched east'). It
has led to increasing competition between countries, regions and communities
for jobs through ICTs, and has thus contributed to rapid flexibilisation of the
labour market. Many EU programs (including ESF programmes) have been used to
reinforce this process, mainly in old industrial and rural areas (see Hepworth
and Ryan, 1996: 30)
·
it has become clear that many telework
schemes have emerged informally, sometimes even in the form of a shadow telework: in Austria, for example, it is estimated by the Ministry for Social
and Health Affairs (Juraszovich et al, 1999) that 90% of teleworkers have no
formal agreement; we estimate that in Germany, a maximum of 8% of the
680,000-strong tele-workforce are covered by collective agreements that refer
expressly to the telework situation. It is not known whether the rate of shadow
teleworkers is increasing compared with that of teleworkers working under
collective agreements, but there is little doubt that absolute figures for
informal teleworkers are rising
·
very few employers' associations and
unions have gone down the road of developing real collective agreements on telework, either at a cross-industrial level or at a
sectoral level. Framework agreements like the 20 June 1997 agreement between
Confcommercio and FILCAMS-Cgil, FISASCAT-Cisl and UILTUCS-Uil, and the Austrian
Oil Industry agreement, tend to be rather general, providing employees with few
major benefits and leaving concrete regulation to individual agreements. More
often, collective contracts on telework are restricted to a single company
(e.g. IBM/DAG and Deutsche Telekom and detemobil/DPG in Germany, and PTT in the
Netherlands). In Italy, sectoral and industrial agreements have to be followed
up and adopted by company-based agreements
·
in big companies, local agreements for
certain factories or sites or small groups of employees are often negotiated
instead of company-wide agreements: an example is SNI Germany, which has now
been integrated in Siemens. As teleworking groups often consist of highly
qualified male workers, local solutions tend to be more advantageous than
general company-wide or industry-based agreements. In this way, the interests
of employees in collective agreements covering industries or whole companies
are somewhat ignored
·
individual companies sometimes have to
negotiate with several unions (e.g. Saritel or Telecom Italia/CGIL, CISL, UIL
in Italy), with their branches or local representatives, or with a Works Council
(in Germany). Works Councils function in different ways in different countries
and different sectors with regard to power, rights and scope of actions. Some
of them are in a strong position; others are in a weak position. Workplace
representation in Germany is at its weakest in areas with the highest
employment growth (Waddington et al, 1997:476), and very strong in sectors with
few teleworkers
·
telework is frequently regulated on an
individual basis between employers and employees by means of an addendum to the
individual work contract. Examples of this include ABB Insurance (Belgium), DEC
(Netherlands), SNI (Sweden), and Dresdner Bank and Wuerttembergische
Versicherung (Germany); they usually refer to the home as the teleworker's main
workplace and cover cost regulation
·
particularly where teleworkers are not
full-time employees, but only work one or two days out of the office,
collective agreements are often thought to be inappropriate. Examples from
Germany and Belgium confirm this trend: while company agreements in Germany
used to cover each type of teleworker (Bayerische Hypobank, 1996), more recent
agreements (e.g. at Allianz Insurance) include teleworkers only if they work at
home for at least 50% of their total working time. Part-time telework for one
or two days is increasingly regarded as 'normal', and is covered by individual
arrangements, not by collective bargaining. This strategy may be the result of
companies increasingly wanting to avoid the costs of equipment and any
reimbursements after the pilot project phase has been successfully completed.
In Belgium, special agreements for part-time (1-2 days) home-teleworking have
been concluded in several enterprises in the ICT sector such as Compaq,
Minolta, Hewlett-Packard and IBM. They are not negotiated collective
agreements, but derive from discussions on the Works Council where employers
and employees' representatives have agreed that individual teleworking
arrangements are permitted within a defined framework. It is very difficult to
obtain the written texts of such agreements as the minutes of Works Council
meetings are confidential, although restricted distribution is allowed within
the enterprise
·
existing law sometimes does not apply to
teleworkers because it refers to a kind of full-time remote work that is not as
widespread as part-time telework (see
Belgian Law CCT 39 and the Law on Homeworking 1996)
·
many telework jobs have developed in
industries where the influence of collective actors is fairly low (e.g. the
software industry and financial services), and where individual bargaining is
standard rather than the exception (e.g. among qualified ICT and media staff).
This is also true of teleworkers in various semi-dependent forms of telework
and among people with a different formal status. It is likely in the 'new'
media sector in Germany that 40% of all
employees are self-employed and nearly 20% do telework
·
an increasing number of placements in
telework jobs rely on Internet-based job groups, mainly in the ICT industry.
There is little likelihood of these jobs being covered by collective
agreements. In some cases, placement agencies have developed private support
structures for teleworkers, and operate like artists' agencies, negotiating
working conditions and trial periods with employers on behalf of their clients
·
national legislation is sometimes
ignored, or replaced by collective agreements, while collective agreements are
ignored altogether at local level. Traditional home industries completely
ignore legal regulations and negotiated contracts with impunity
·
many regulations cover only a pilot phase
of telework experiments: sometimes they are followed up by a collective
agreement, but in many cases it is not clear whether this will be a general
agreement. Many pilot projects have never been evaluated as to the
appropriateness of previous collective agreements and further regulatory needs,
and they are not explicitly renewed
·
new developments arising out of the use
of mobile telephone and other wireless ICTs make it impossible to define
workplaces, and accordingly reinforce the trend to informalise telework. In
extreme cases, employers no longer know where the employee's work is being
carried out. In particular, the craftworkers and service workers in SMEs who
always used to do mobile work are now doing mobile telework. In many cases,
small employers are even giving up their central offices so that the whole
company becomes more or less mobile and virtual. Any attempt to define
'workspace' and 'workplace' becomes extremely difficult in these circumstances
(Palkkatyöläinen magazine, SAK, September 2000)
If we consider all trends and look at the empirical results of the
Euro-Telework project, we find a certain shift of regulation of telework:
·
from governmental and juridical
regulation to collective industrial agreement (e.g. in Italy, Austria, partly
in France and Belgium)
·
from collective industrial agreements to
company-based agreements (e.g. big companies in the ICT industry like SNI Sweden,
IBM Germany, IBM Austria and British Gas) or to a coexistence of industrial and
company agreements
·
from company-based agreements to
department-wide agreements, which themselves often contain pilot schemes (e.g.
Lufthansa Systems, Lufthansa and SNI-Paderborn)
·
from collective regulation to individual
contracts (e.g. IBM Germany and other ICT firms, Dresdner Bank and
Wuerttembergische Versicherung Germany)
·
from centralised governmental regulation
covering only big companies to the toleration of 'shadow' telework without
effective regulation in local home industries (e.g. in Italy)
·
from collective bargaining to private
support structures for teleworkers (e.g. tele-job groups in many countries,
Verband Telearbeit in Germany, and Oesterreichische Telearbeitsvereinigung in
Austria, which have not yet been effective in negotiating agreements)
In addition, criticism of over-regulation in continental Europe has
caused much resistance to attempts at regulation in multinational ICT and
finance enterprises that refuse to negotiate on what they see as 'normal'
issues like telework.
We are therefore a long way from the suggestion of the Interim Report
of the High Level Expert Group on the Societal Aspects of the Information
Society (January 1996) that telework is 'one of the major forms of new modes of
work' and that 'a concerted action needs to be taken to make sure that these
new forms of work are encouraged within a framework which reduces the negative
aspects of telework as much as possible.'
2.2 Indicators of a re-centralisation of industrial relations
The tendency to decentralise is not one-dimensional: there is evidence
to suggest that the process of decentralisation, even the individualisation of
the formerly centralised system of collective bargaining, is not necessarily
the sole, decisive trend in transforming the network of industrial relations:
·
large multinational companies often agree
that telework should be regulated by collective bargaining in order to create
similar conditions at several national sites. They are trying to improve their
image and improve their recruitment opportunities by negotiating formal
contracts with employees' associations
·
small companies in the ICT sector are
growing, and they are discovering that collective agreements and a 'systemic'
approach might be easier than negotiating with every single actor. In 1981,
more than 50% of the German workforce were still represented by Works Councils,
but today the rate is under 35%. This is seen as dangerous by some firms no
longer able to negotiate with legitimate employee representatives, and there is
a feeling that small groups are exerting more and more pressure in these
unregulated conditions. Some German firms have even instigated the election of
Work Councils in the hope that standardised formulae can be found more easily
than solitary solutions
·
even in industries that have long been
very hostile to collective agreements (e.g. the ICT industry and temporary
agencies), big companies like as Randstad and Adecco have agreed to collective
contracts on wages and working conditions in Germany, Denmark and the
Netherlands (for Germany, see Die Frage nach einem Tarifvertrag entzweit die
Zeitarbeitsbranche, FAZ, 11 April 2000). Regulating working conditions in this
way may enhance quality competition (instead of wage competition), reduce
fluctuation, and attract more highly qualified staff
·
As part of this trend, pay rates for
temporary agency work have been unified by law in France, and parity with
permanent workers has been established in Austria, Belgium, Portugal, Spain,
Italy, the Netherlands and Luxembourg; moreover, contracts between individuals
and staff-leasing firms are handled less bureaucratically in France, and
limited short-time contracts for one single firm are also allowed. Smaller
temporary agencies in Germany and other European countries, however, are afraid
of losing their flexibility through the introduction of this kind of
regulation. They expect their margins to suffer as a result of any form of
collective bargaining, and they therefore still refuse to negotiate with the
unions (see European Industrial Relations Observer, January 2000)
·
because of mergers with smaller and even
bigger unions (e.g. the plan for a united union for industries in Germany
[Ver.di]), the negotiation of pay and working conditions is centralised in some
industries. Accordingly, the transfer opportunities of appropriate pilot
solutions in the field of telework may increase, and the degree of
institutionalisation of collective contracts may also be higher in the future
·
during the last few years, the public
sector and its unions in many European countries have played active roles in
developing collective agreements for telework. Public actors have tried to
negotiate model solutions with a good chance of being transferred to other
public sectors, or even to the private sector. The Italian, Irish and Finnish
governments have tried to contribute to the development of telework within the
framework of social pacts or partnerships (e.g. in Ireland in 2000), through
the development of telework guidelines for the public administration (e.g. in
Italy in 1999), and through model projects or the initiation of legislation (in
Italy in 1998, though not directly focused on telework itself, but on related
matters). Governments in smaller countries mainly have a chance to influence
the attitudes of the social partners through pilot projects and actions. National
laws have been passed to prevent dependent self-employed (so-called 'false' or
'pseudo' self-employed) people from being excluded from the social security
system (e.g. in Germany), and to unify working conditions (e.g. French
temporary work agencies)
·
new forms of tripartite social dialogue
have been established in many European countries, including those with
traditionally 'weak' regulatory schemes (e.g. Ireland). This dialogue, however,
and the guidelines to emerge from it, do not specifically refer to telework in
most European countries, but it may be a functional equivalent to non-existent
government action or collective agreements
·
most unusual is the case of Denmark where
a system of framework agreements has developed since 1997 that overrides all
individual agreements. Individual telework contracts can only be signed in many
industries and public services (1m employees) if there is a collective
agreement in existence. From the trade union standpoint, this may well be the
best example of successful centralisation and standardisation of telework
agreements in an individualistic society. The policy of the government and of
the Department for Labour and the Environment may have been decisive in this
victory achieved by the HK union because of its strong interest in developing a
coordinated strategy offering the whole workforce telework opportunities and
access to ICTs. Paradoxically, this trend has been supported by the fact that
there are very few large companies in Denmark (Bosch, Webster & Weissbach,
2000), and that collective agreements and government action are more easily
accepted under these conditions
2.3 The need for social dialogue and concerted action
From the point of view of employees and their representatives, the
situation is unsatisfactory because the increase in individual opportunities to
enter a more flexible working situation has been accompanied by great
insecurity about rights at the workplace. It seems that conditions of telework
can be imposed on individual workers in many industries in some countries, and
they no longer need to be negotiated.
However, new issues on the agenda are beyond the scope of the
established system of industrial relations. In particular, the danger of social
exclusion of relevant groups of the population, the skills gap and the question
of access to relevant communications channels of the information society have
aroused considerable concern. This was articulated in the Green Paper,
Living and working in the Information Society (December 1996). It contained
the ETUC position:
'Workers are showing interest in teleworking because it can offer them
greater control of their time, and enable them to combine their work and
leisure more efficiently. Some workers regard teleworking as an opportunity to
be more creative in exercising their profession, although on the downside they
view being isolated or being cut off from everyday life in their company as
risks that go hand in hand with teleworking.
'Teleworking should neither be condemned out of hand nor glorified. The
crucial question is how it will be organised - preferably in such a way that
the 'tele-' aspect of the work in question is placed in a complex setting that
stimulates human skills and activities. The decision to opt for teleworking
must be voluntary and reversible. Teleworkers must retain the status of
employees. Payment and labour relations must not be allowed to deteriorate with
the transition to telework. All social security and health insurance rights
must be preserved, teleworkers must be guaranteed social protection, and health
and safety standards must also be applied to telework jobs. Teleworkers must
have the same career opportunities, the same access to in-service training and
advanced training as other employees. All basic conditions governing
teleworking must be negotiated with the relevant workforce representatives.
This applies in particular to working time, and the European Commission is
requested to take this factor into account in a directive on teleworking. The Member
States of the EU are urged to ratify the ILO Convention on homework.'
With regard to teleworking, the ETUC recommends:
·
'that teleworking should be negotiated in
all cases between workers' representatives and the firm that wishes to
introduce teleworking. Anyone who adopts teleworking should do so voluntarily,
and retain their status as an employee. The conditions for teleworking should
be laid down in a collective bargaining agreement
·
'atypical and precarious working
conditions are widespread among teleworkers. Protection through social
security, access to health insurance and unemployment benefit are urgently
required for all. Employee status for teleworkers would offer the best solution
for problems in relation to social security
·
'if teleworking is carried out for
various employers, social security contributions should be paid in the country
where the teleworker is employed. Social security thresholds should be lowered
to guarantee social security cover for all
·
'for teleworkers, it is very important
that they should retain their rights to worker participation. Employee
representatives should also be responsible for teleworkers, and they should
also have the right to meet at regular intervals. This would be extremely
important for teleworkers working mainly at home. The opening up of corporate
networks for trade union information would be important with regard to the
concern for guaranteeing teleworkers rights to participation
·
'there should be clear rules for data
protection and privacy. Teleworkers must be entitled to disconnect from the
network. Rules are required with regard to the supervision of teleworkers...'
In the European Guidelines on employment (Pillar VI, Guidelines 15-17)
drawn up at the Luxembourg Summit of 1997, member states agreed to introduce
newly developed forms of employment into their legislation on employment
contracts. However, the development of new forms of employment according to
Guideline 17 is handled differently from country to country. It is mostly
restricted to an increase in the number of part-time jobs (see the changes in
German law announced for 2001). Other forms of employment have been rather
restricted (again, see recent German legislation).
So far, the guidelines have had little impact on national strategies
for the development and regulation of telework; this is mainly true of
countries with highly developed systems of multilateral participation
('corporatism'). However, countries with relatively weak traditions of labour
regulation seem more adaptive to the Luxembourg Guidelines because it is felt
that there is a kind of vacuum with regard to labour regulation. The question
is whether it is possible to identify a common European approach towards
telework that fits in with existing 'strong' systems of national labour
regulation of the type to be found in Germany or Austria.
3. PROBLEMS WITH REGULATING NEW TYPES OF WORK
Telework is not a legal category in any European country. It has many
facets, and includes very different kinds of work including home-based
telework, alternating telework, remote work on sites controlled by the
employer, work in tele-cottages and tele-centres, and mobile work. It follows
that there is effectively no common definition of telework either in
legislation or in collective agreements, although in Finland and Italy there
are references to homeworking and to the relevance of ownership or possession
of equipment and tools as criteria for employment contracts. Under Belgian and
German law, however, homeworkers do not own their equipment but work
autonomously, and they are not included in the work organisation of the
employer. Some of these laws date back to the era of traditional homeworking in
industry (e.g. weaving and garment making, and leather and footwear), or more
recently in services (e.g. family child care in carers' homes) and, as far as
(expensive) tools and equipment are concerned, to building sites and forestry.
Others are new (Belgium, 6 December 1996).
Traditional rules for homeworkers still have some practical importance
within their remit, and the principles behind them may also have some relevance
beyond that remit, and may even embrace telework.
Some teleworkers are self-employed, some work as dependent employees,
some are tied exclusively to one company (while others are not), some work
continuously, and some only work temporarily. We cannot expect traditional
labour law to cover all the problems of these different types of teleworker.
Many sources of law on custom and practice applied to telework are not
sufficient to deal with present and future developments associated with
telework, and we therefore have to identify the security needs of the various
kinds of teleworker:
·
the teleworker's status as a regular
employee or as self-employed (with different degrees of dependency on the
company)
·
the degree of freedom left to employees
to become teleworkers
·
the existence of collective regulation
and representative structures in the industry or company in which the
teleworker is employed (e.g. a high level of regulation and workers'
representation in industries with highly qualified male workers; a low level in
new ICT and Internet firms)
·
the level at which collective agreements
are concluded (i.e. national, sectoral, industrial, company-level or
departmental)
In most cases, dependent teleworkers are encouraged to engage in
telework voluntarily, they have the right to come back to headquarters, and
they are basically treated the same as other employees. This situation could
change, however, when more and more jobs are offered to teleworkers who have
not previously been employed. The next few years could see a considerable
increase in the number of self-employed teleworkers who have not had the chance
to decide on their status properly.
Large numbers of self-employed workers have yet to join trade unions in
any European country, and few other collective bodies exist to represent
teleworkers whether they are employed or self-employed. However, changes are
beginning to take place. The attitude towards self-employment and traditional
employment is still ambivalent, not to say negative. Most member states
understand Guideline 17 of the Luxembourg Summit to mean the introduction of
new forms of part-time work (for example, in Germany, giving individual workers
the right to choose part-time work from 2001), while new forms of
semi-dependent work are still widely ignored. However, multi-salaried
employees, as they are known in Italy, may be an innovative type of
(tele-)worker adapted to networking if the necessary requirements are met with
regard to such matters as social security and representation.
Fig. 1:
Telework Industrial Relations (Source: Author's analysis)
With the spread of the phenomenon of self-employed teleworkers, unions
and national governments may be urged in the next few years to regulate or
negotiate certain aspects of these workers' activity. Self-employed teleworkers
are likely to need guarantees that refer more to the continuity and reliability
of their relationship with the client company than to traditional conditions of
work.
Another distinction must be drawn between conditions in which employees
can choose to become teleworkers, and those in which they can only go along
with the company decision. In the former, telework is usually a mixed strategy
both for the company and for employees, and negotiations take place to
determine how the benefits can be maximised for both sides. In the latter case,
where telework is a company strategy pursued in order to obtain cost reduction
or more staff flexibility, the strategy of employees and their unions can be
expected to be more defensive, and aim at avoiding the risks normally
associated with telework.
In some countries, unions try to organise or support teleworkers beyond
the clear-cut demarcation lines of the system of labour associations for their
social security. The Bondgenoten trade union in the Netherlands has been giving
self-employed workers support since 1999. The new union, the FNV Zelfstandige
Bondgenoten, is giving particular support to self-employed workers with no
employees.
Trade unions in Italy and Germany are increasingly discussing support
procedures for self-employed teleworkers, and trying to define a new type of
'autonomous' worker. The CGIL, CISL and UIL have favoured the setting up of
specific organisational structures for the small self-employed. In other cases,
tele-job groups or teleworkers' associations (e.g. Verband Telearbeit in
Germany, and similar associations in countries like Luxembourg) act as support
structures. Private and community-based support structures for teleworkers have
developed mainly in Great Britain (e.g. MARI, Newcastle in the early 1990s, and
Support Shop, Sussex, more recently), and increasingly in Ireland. In Austria,
the Union of the Private Sector (GPA) is going to broaden the definition of
employees in order to incorporate self-employed workers, especially in the
telework sector.
The changes analysed above impact on the structure of unions
themselves. The GPA is seeking to confront them by introducing a new
organisational structure: examples include new organisational units called Interessensgemeinschaften.
These are platforms for special groups of employees or self-employed workers
who have the same working conditions, but no common organisational structure
because they belong to different industrial sections. The GPA is starting off
with two Interessensgemeinschaften: one for ICT workers and one for
social workers (IT-Interessengemeinschaft: see http://www.gpa.at/it).
In Germany, the DPG offers a hotline (http://www.onforte.de) to teleworkers in all
industries, and even to self-employed workers, thereby breaking with the
traditional regional and industrial principles of organisation. This strategy
will boost the professionalism of the union's activities on behalf of
teleworkers, and strengthen the principle of target group strategies. It will also
contribute to a new understanding of unions as service units that are selected
by (tele-)workers, rather according to the service quality offered in
comparison to cost, or because they traditionally belong to a certain industry
or profession. It means that this strategy of approaching the small
self-employed will have a certain impact on the structure of unions themselves.
In Denmark, the commercial and service union HK began to take self-employed
workers as members as long ago as 1997; 400 have joined so far.
4. NATIONAL FRAMEWORK AND INSTRUMENTS FOR REGULATING TELEWORK
There are many levels of regulation. Some have become dominant in
certain European countries for historical or cultural reasons:
·
regulation by law (including the
implementation of company-based representative structures as a type of
multilateral participation)
·
regulation by collective bargaining
·
individual working contracts, or annexes
to a standard contract following individual negotiation
At the collective bargaining level, distinctions may be drawn between:
·
sectoral agreements (with one or more
unions)
·
industrial agreements (with one or more
unions)
·
company-based agreements (a) with unions
or their local representatives or (b) with elected representatives of the
workers [e.g. Work Councils])
·
department-based agreements (a) with
unions or (b) with workers' elected representatives)
Starting at the level of legislation or labour regulation, most
European countries have no particular laws
with regard to:
·
the contractual situation of teleworkers
(exceptions: France – see Blanpain, 1997; and recently Finland)
·
their social security entitlements
(Pennings, 1997)
·
occupational health and safety issues
(Huuhtanen, 1997)
It follows that the regulation of telework is more or less left to the
application of general labour relations and labour protection law, and of
course to the social partners. However, trade unions and Work Councils have no
clear role in telework: in some countries, and there are no formal
participation structures for workers or trade unions (e.g. co-management or Mitbestimmung);
sometimes, similar structures have only been established in bigger companies,
but they never refer explicitly or exclusively to the representation of
teleworkers.
The next chapter contains information about the national legal
framework of collective bargaining, and about the collective agreements that
flow from these negotiations. It will show that the legal situation and
objective detail vary considerably from one European country to the next.
However, we will try to identify some transnational clusters of types of
regulating activity relating to telework, and demonstrate the advantages and
disadvantages of the various strategies.
The Italian and French governments have tried to exert considerable
influence over the regulation and development of the information society, and
to support social dialogue among the social partners. In both countries, public
programmes to develop the information society and to boost telework were
established in the 1990s at government and community levels, although telework
was paradoxically banned in France back in 1959 before it properly came into
existence.
In Italy, measures to initiate social dialogue on new types of work
developed against a backdrop of a highly differentiated system of types of
working contract originally related to the need for a broad-based, traditional
home industry. These needs led to a particular legal institution in Italy, the
'Commodatum for use', which has now been expanded to embrace telework.
One of the special features of teleworking in Italy concerns the ownership of
the equipment that companies issue to their employees under the Italian legal
system of 'commodatum for exclusive use' (Article 1803 of the Civil
Code). This type of ownership imposes many obligations on the user (Article
1804 of the Civil Code), including a duty to ensure that 'the object is always
available' (Article 1805 of the Civil Code), 'estimating the value' (Article
1806 of the Civil Code), 'wear and tear' (Article 1807 of the Civil Code) and
'cost of using the object and extraordinary expenses' (Article 1808 of the
Civil Code).
Five types of teleworking have been identified by experts under Italian
labour law:
·
contracts for the procurement of goods
and services
·
contracts for the rendering of services
or the securing of a result
·
contracts of semi-employment
·
contracts of subordinate employment
proper
·
contracts for subordinate employment which
involves homeworking
Existing legislation has hitherto regulated the classic
types of independent work, which can also include teleworking:
·
artisans
·
domestic work
·
self-entrepreneurship
The traditional system of working relations and laws for the home-based
industry does not play a progressive role in regulating telework in 'new'
industries. The new phenomenon of so-called para-subordinate workers (often
including freelance teleworkers) forced the Italian Parliament to discuss the
possibility of a regulation aimed at extending social protection and
negotiating rights to this particular typology of workers. A draft law (the
'Smuraglia law') is before the Senate, and is still subject to fierce debate
(see http://www.senato.it).
Other recent Italian legislation concerns 'subordinate
workers' (i.e. employees) as well as autonomous workers. Law 626/94 relating to safety in the workplace was extended by a collective
agreement of 18 November 1996 to entitle staff with for health and safety
responsibilities to inspect workplaces in the home. The issue of telework has
been targeted by the government in the last three years: this has been attested
by the appointment of an Under-Secretary for Technological Innovation and the
Internet; this Minister has also been responsible for the regulation of
e-commerce since 2000. Other instruments used for
introducing telework (with subordinate or independent workers) are:
·
a law supporting disabilities
in the labour market (a specific article dealing with telework)
·
a law on equal opportunities
(e.g. the Tecnopolis and Zanussi agreements)
·
European Commission research
programmes (e.g. the Naples local authority)
Local projects involving the public and private sectors,
and based on support for local and European instruments (e.g. the ASNM Proxima
Telecentre in Sesto San Giovanni-Milano, and the IFOA Telecentre in Castel
Nuovo ne' Monti [Reggio Emilia]).
In the public sector, some historical cases of
experimentation (e.g. the Rome local authority, 1996-97) have prompted specific
legislation, and approval of the 'Bassanini Law' (No 191 of 16 June 1998)
opened the way to follow-up regulations (e.g. Decree No 70 of 8 March 1999) and
an agreement with the trade unions (21 July 1999). Information about this can
be found on the Euro-Telework web site (http://www.telework.org).
Examples of negotiation and experimentation were subsequently introduced in a
variety of areas including the Regions of Lombardy and Emilia-Romagna, the
Provinces of Bologna and Perugia, and the Agriculture Ministry.
At a general level, the government's role in a trilateral
'concertation' process has steadily increased since the early 1990s. After long, stressful negotiations, a specific 'Protocol on Income
Policy' was signed on 23 July 1993 by the Italian Government, the main
employers' associations and the main trade unions. It introduced or renewed
some general rules on negotiation (two levels: national and company-level) and
measures to guarantee social and economic protection against the possibility of
inflation. Later on, with a view to opening up more possibilities for promoting
employment in a social dialogue context, the same social actors signed the
'Pact for labour' in September 1997. This specifically sought to deal with:
·
labour flexibility
·
vocational training
·
youth unemployment
The focus of social dialogue was (and still is) a balance between the
needs of global competition and society's need for security. To regulate
telework by law in the private sector, a unified text was approved by the
Senate's Labour Commission in June 1999; it awaits debate in plenary session.
Opinions expressed by the social partners and some important companies during
official Senate hearings were for various reasons almost critical of the
introduction of such a detailed law. In the event, the experience proved that
negotiating instruments were able to cope with the new phenomenon.
Company-level agreements, legal regulations and sectoral agreements are
all now very important. Company-level agreements are generally signed by the
company and by all unions representing the employees of the company (e.g.
Telecom Italia and the CGIL, CISL and UIL, 1995) or by the joint board of union
representatives (e.g. Tecnopolis, 1996). Since the end
of 1994, Italy had had considerable experience of regulating by negotiation in
the private sector at company level (e.g. Italtel, Seat, Dun & Bradstreet,
Digital, Tecnopolis, Telecom Italia, Itea and Zanussi; see http://www.euro-telework.org), at sectoral
level (e.g. telecommunications, commerce and banks), and at territory level
(one only known example: the Province of Modena).
It is important to note that trade union density in Italy is almost as
high as it was in the 1960s (Waddington et al, 1997). This high level of
unionisation in Italy is partly due to an increase in the number of
workplace-based unions (Rappresentanze Sindacali Unitarie, RSU). These are
autonomous from established unions and federations, although the latter have
remained strong in France. In Italy, though, local unions tried to win control
over the bargaining process, while management tried to settle an increasing
range of issues locally, but in the field of telework, the activities of the
great federations are much more important. The three leading unions (CGIL, CISL
and UIL) have negotiated some framework agreements (with Confcommercio for Commerce
and Services on 20 June 1997; with four telecommunications companies on 9
September 1996, and with Intersind) which are rather general and leave concrete
negotiations to company level. But the most important general agreement was
signed on 28 June 2000 between the three main unions and Confindustria (the
national industry organisation). This is the so-called 'new economy' agreement
affecting all sectors where skilled workers using ICTs are involved: it offers
a sort of horizontal framework for managing telework and other flexible forms
including part-time, call centres and weekend contracts (see abstract on http://www.euro-telework.org).
However, local actors often ignore sectoral agreements and legal
regulations. Some observers refer to a 'Mediterranean system of regulation'
with regard to the Italian, Spanish and Greek situations, all of which are
characterised by a high degree of formal government intervention which is not
properly respected in industrial practice, mainly because of the importance of
the home industry sector.
One important difference between the IR systems of Italy and France is
that the influence and density of trade unions is declining in France (mainly
in new industries and small enterprises, and among part-timers). This is
combined with a relatively weak legal and institutional regulation of union
influence in the workplace (the droit d'expression of 1982). French
unionists have been able to conclude an increasing number of local agreements
(though few specifically dealing with telework), but links between local
representatives and the national organisations have weakened.
The ICT sector in France is still influenced by the government, and
follows the old tradition of developing ICT applications (e.g. the Minitel
story) with a view to creating new markets. It is not surprising that France
Telecom offers its employees an attractive supplement to the working contract,
many clauses of which lie outside collective agreements.
However, the initiation of social dialogue on telework suffered
somewhat at the hands of national discussions on working time. The regulation
by law of working hours, particularly of part-time work and temporary agency
work, is fairly strict (EIRO, January 2000). How many teleworkers are covered
by this regulation is not clear, but formal consultation systems concerning
telework have been established between the social partners and the government.
In 1994 a law was passed promoting the status of teleworkers as self-employed
workers. Under this legislation, a teleworker who is registered as a tradesman
or commercial agent, is de jure looked upon as self-employed. In 2000, a
collective agreement for the communication sector was signed by the four main
federations, the CFDT, CFTC, CGC, and FO.
On 6 June 2000, the French Telecommunications employers concluded a
National Collective Agreement (Convention Nationale des Télécommunications)
with the CFDT, CFTC, GDC and FO unions. This agreement is also very important
for the development and regulation of telework in this sector.
The agreement was signed in order to:
·
support the economic development of this
new and important sector, and its professional development
·
enable the employees to benefit from the
expansion of this sector following deregulation
·
give them elementary social guarantees
·
create a framework within which company-based
agreements can be concluded and develop social relations between employers and
employees
Title 3, Chapter 1, states that the trade unions may carry out
activities in the sector without let or hindrance; furthermore, the social
partners agree to meet periodically, and a national committee will be
established to interpret the rules of the agreements. Chapter 2 refers to an
intention to establish social dialogue at company level as well. Committees
will be elected in companies to negotiate local agreements and deal with
individual grievances. Rules governing elections for these committees will be
fixed by the agreement according to the size of the company. Each union
delegate has 10-20 hours a year for trade union work. Unions have free access
to the companies, and can make use of companies' communications channels.
Title 4, Chapter 1, bans discrimination of any sort against employees
in the telecommun-ications sector. Chapter 2 regulates the way that working
contracts are closed, and their content. Article 8 of Chapter 2 concerns the
introduction of tele-homeworking: it says that the relevant local committee
should be informed before telework starts, that telework is voluntary and
reversible, and that any working contract referring to telework has to detail
the number of working hours, salary, the location of the work and supply of
materials.
4.2 Stable corporatist schemes in Germany and Austria. Will telework fit in?
Telework has evolved only slowly in Austria. Some big IT firms that
have collective agreements and carried out pilot projects some years ago have
very few teleworkers, and some have even reduced numbers. However, the public
sector (e.g. Magistrat Wien and Land Oberoesterreich) runs some relatively big
pilot projects.
The Arbeitsverfassungsgesetz (Work constitution law, ArbVG)
provides opportunities for Works Council involvement which can also be applied
to telework, but only for regular employees with limited or unlimited
contracts. It covers:
·
the employment of new workers and
part-time employment (at least a counselling right)
·
personnel planning
·
the transfer of employees to other
positions if it is associated with a deterioration in working conditions or
wages, and the workers involved are doing telework
·
dismissal of employees
·
control systems
·
incentive wage schemes
·
changes in work organisation (e.g. right
of information and counselling); if these changes are combined with
disadvantages, the Works Council can force the employer in firms with more than
20 employees to negotiate a 'social plan' which may (with regard to telework)
include elements such as voluntary moves, alternating telework and normal
employee status
The GPA has negotiated a framework collective agreement
(Rahmen-Kollektivvertrag) for teleworking among industrial employees, and
another for electricity enterprises (1 November 1998) that also deals with
problems of telework (§ 19a, § 6 c for electricity enterprises). The agreements
cover about 160,000 workers. The number of teleworkers is not known (perhaps
5%).
In 2000, the GPA carried out a survey in the electronic and electricity
industries in an attempt to evaluate collective agreements for teleworking in
these sectors. Members of Work Councils were asked if their company employed
teleworkers or shadow teleworkers, how many were employed, if they were covered
by the collective agreement, and if they used the pattern for a working
contract (which is part of the collective agreement). Very few enterprises have
formal teleworking, and there are also very few teleworkers (1 in 10). However,
a lot of enterprises have 'shadow telework': these 'shadow' teleworkers are
mostly employees in the ICT industry, and many of them have individual
agreements with their managers; they work at home especially in the morning, in
the evening or at the weekend. A new study of the health of teleworkers comes
to similar conclusions that teleworkers do a lot of unpaid overtime. Another
collective framework agreement (Rahmen-Kollektivvertrag) has also been
signed by the GPS and the oil industry: it covers 3300 employees.
In Germany, the rapidly evolving telework sector is covered by a
legislative framework that is more then 30 years old and does not really cater
for new types of decentralised work. For example, the Betriebsverfassungsgesetz
(Factory Constitution Law, BetrVG) sets out information and
participation rights (in §§ 80, 87, 90, 91, 95, 96-99, 102, 106, 111 and 112)
in respect of:
·
the introduction of new technology or new
work organisation (information and
counselling rights)
·
the introduction of technology by which
workers' efficiency or behaviour will be potentially controlled (e.g. ICTs
controlling the number of keystrokes or protocoling when a teleworker is not
working)
·
continuous qualification
·
changes in working times
·
the introduction of wage-systems based on
piecework or other new incentive systems
·
the outsourcing or introduction of
telework for a greater part of the work-force (if more than 5% were involved,
that would be regarded as Betriebsaenderung and would mean that the
Works Council (Betriebsrat) would have to be consulted; as in Austria, a
'social plan' (a compensation scheme for dismissed workers) can be negotiated
in these circumstances
·
the selection of workers for telework
where the work content or work contract is concerned or changed
Participation rights in Germany do not directly refer to the
introduction of telework or other new types of work organisation, but to a lot
of questions such as working conditions and technical control, staffing and
training, staff selection, payment and technical methods of work that could be
(and usually are) affected by telework.
Similar rights are established in the public sector by federal law (BPerVG
§§ 75 and 76). In the public sector, the only regulation (Hessisches PerVG,
§ 81) is in the Land of Hesse: this introduces direct participation in
organisational and economical questions.
In general, employee representatives are in a strong position because
of the BetrVG (or the BPerVG). As for the introduction of direct
participation for employees, it is often requested that firmly based agreements
are reached first. However, in the case of telework, it will become more
difficult for the Works Council to claim the use of certain traditional
instruments of participation and control (e.g. control of working locations
without notice, involvement in the selection of hardware and software in
respect of ergonomic matters, mass meetings, and the number of elected
representatives for each location of the enterprise according to the number of
employees). This is not only because exercising rights has become more
difficult due to the changed organisational circumstances (e.g. space, time,
social contacts, and fewer employees – and therefore of elected representatives
in the central departments), but because for the employees themselves, these
questions do not come up in the day-to-day performance of their jobs when
working at home, or because they feel that Works Council control is
inappropriate in the new situation.
The new German law on 'false' or 'pseudo' self-employed of 1999 makes
it more difficult to employ (tele)workers as subcontractors of only one
company, and at the same time avoid payment of social security insurance
contributions. The risk of paying back the insurance fees is left to the employer
if the (tele)worker does not meet a criterion of genuine self-employment.
It would appear that the old German law covering cases of traditional
homeworking (HAG, Heimarbeitsgesetz, Homeworking Law) is not
applied to all telework because it is based on an assumption of self-employment
and the high autonomy of teleworkers who are not included in the employer's
organisation.
The German Hans-Boeckler-Stiftung (Kamp, 2000) has collected about 70
collective agreements (Tarifvereinbarungen) or, more often, factory
contracts (Betriebs-, Dienstvereinbarungen) on telework that have been
signed by individual firms and local Work Councils or, in the few cases of
collective agreements (Tarifvereinbarungen), by trade unions. This
figure needs to be compared with more than 1000 agreements on flexible working.
Nearly 50% of all telework agreements are local agreements in private
industry, and more than one third are local agreements in public administration;
others are on an even lower level of institutionalisation (Regelungsabsprache).
There are only three collective agreements that have been signed by trade
unions, and they are only valid for one single enterprise (DPG and Deutsche
Telekom; HBV and Genossenschafts-Rechenzentrum).
Not a single agreement has been negotiated on an industrial or sectoral
level with several companies. One might infer that the three collective
agreements are in fact local (i.e. company-based) agreements as well, although
they have reached a higher level of institutionalisation through the official
acknowledgement and active participation of the unions. About one third of all
agreements regulate pilot schemes for a limited period or for a limited number
of employees; two thirds concern the unlimited use of telework (Kamp, 2000).
The first agreement on telework was signed in 1992; only about 90% have
been signed in 1997 and since. Each year since then, there have been about
17-19 new agreements. This shows that although there is no trend to harmonise
standards or combine negotiations at industrial or sectoral levels, interest in
regulating telework at a local level seems to be high on both sides, and will
not end when the pilot schemes are completed.
There has been a huge increase in the amount of telework carried out in
Sweden and Denmark during the last few years: in Denmark, about 13% of the
workforce are in teleworking, but most of them do so occasionally, for a few
days a week or as mobile teleworkers. These countries have become Europe's
leading countries with regard to telework, and may even have overtaken the UK.
The regulation framework is not as strong as it is in Germany or Austria,
although the unions express considerable concern about health and social
issues.
In Sweden, Denmark and Finland, the systems of labour relations are
quite stable, and trade union density has even increased during the last five
decades and is now the highest in Europe (> 80%). However, this is partly
due to widespread 'white-collar unionism' in Scandinavia, and an increase in
the number of competing confederations that have broken away from manual worker
unions. This not only means that individual bargaining power plays a greater
role in decentralised negotiations, but that the influence of small groups of
academics on issues like telework is growing (see Denmark's Akademikernes
Centralorganisation; Waddington et al, 1997: 473).
In Sweden and Norway, telework is often negotiated individually between
the teleworker and the head of department (e.g. SNI Sweden). In both countries,
control systems are set up to make sure that management also addresses health
and safety issues from the teleworker's point of view. Checklists developed in
the LOM program in Sweden play an important role for health and safety issues.
The situation in Denmark is quite different. This is partly because of
the key role played by the public administration as a pacemaker in telework,
and as an element of a rapid transformation strategy designed to provide
citizens with ready access to the information society, and partly because of a
high degree of centralisation of negotiations. Danish employers' associations
and their counterparts have agreed to make a careful study of experiences that
attended the introduction of new organisational forms and new wage systems.
Because there are very few large firms, the associations and the government
have usually been able to agree on joint action (Bosch, Webster &
Weissbach, 2000: 101). In December 1996 HK, the Danish Commercial and Clerical
Employees' Union, proposed a 16-point model agreement that dealt with:
·
definition of telework
·
the right to do telework on a voluntary
basis
·
collective bargaining rights (equal
rights as in ordinary workplaces)
·
salary (same as in ordinary workplaces)
·
job content
·
work environment (Working Environment
Act) and equal rights
·
technical equipment and working
environment; reimbursement of cost
·
working hours: preference for part-time
telework;1 or 2 days at home and 3 or four days at the company; no monitoring
by the employer
·
insurance
·
industrial injuries (equal rights as in
ordinary workplaces)
·
equal legal rights
·
training
·
union negotiators and safety and health
representatives
·
privacy
·
sickness – equal rights
·
termination of the agreement
The first protocols on telework were agreed by HK/Service, HK/Handel
and Dansk Handel & Service in the course of their negotiations on 27
January 1997. It was not a proper agreement, but rather a protocol to the
general collective agreement. Nearly the same protocol was agreed in February
1997 in talks with the Danish government. In both cases, the partners agreed to
carry out an investigation, and committed themselves to concluding a general
collective agreement on telework early in 1998.
The first real framework agreement on telework was reached in the
county, municipality and affiliated institutional sector in April 1997. The
financial sector reached a framework agreement on telework at the same time.
The employers' association wanted to bring telework in as flexible work in
August 1996: HK was at that stage the leader in the field, and many Danish
trade unions asked HK how to design a framework agreement on telework.
HK says that the Danish trade union movement won the battle about the
type of agreement on telework. HK was always argued against agreements on
telework at company level, preferring a collective framework agreement: the
employers' organisation was unable to halt this development. In 1997 and 1998,
more framework agreements on telework were signed, and as a result more than 1m
employees in Denmark can now have telework stipulated in their collective
agreement.
The current framework agreements create a three-level structure:
·
the overall framework agreement signed by
parties holding general authority
·
local agreements signed by hiring
authorities or companies (employers) and the relevant trade union organisations
·
individual agreements signed at the place
of employment by employers and individual employees
The agreements stipulate that telework must be voluntary. An
individual agreement on telework can only be made where the terms are agreed. This
solution is unique in Europe. The employee or employer in
question can stop doing telework at any time. Aspects concerning working hours,
wages, the working environment and job security are regulated by agreements.
Costs linked to the operation, maintenance and setting up/dismantling of
equipment are the employer's responsibility.
In spring 1997, two other agreements were concluded: the agreement by
the Association of Local Government Employees' Organisations (KTO) covering
local authorities and counties (approximately 600,000 employees), and the
framework agreement for the financial sector (covering approximately 60,000
employees in banks and other institutions). Among other issues, both agreements
stress that 'telework constitutes only part of total working hours', that the
usual collective agreements apply, and that overtime shall be notified in
accordance with current regulations. The KTO agreements also emphasise the
importance of 'job security', and state that employees may return to their
previous or similar job.
Spring 1998 saw the conclusion of several more protocols on telework:
in retailing and services (between the Union of Commercial and Clerical
Employees in Denmark and the Service, Retail and Wholesale Trade), and in the
industrial sector (between the Central Organisation of Industrial Employees in
Denmark and the Confederation of Danish Industries). Both protocols also make
it clear that telework falls within the scope of collective bargaining and
agreements, and that teleworkers have the same rights and obligations as other
employees.
The Ministry of Finance and the Danish Central Federation of State Employees
Organisations entered into an agreement on telework in 1998. This framework
agreement, which is a pilot scheme, runs out in March 2001: it applies to crown
servants and employees with similar status. Protocols have been agreed on the
clarification work currently being carried out in a number of other areas with
a view to analysing and discussing issues linked to telework.
The Danish Confederation of Trade Unions and HK believes that the
collective agreements prove perfectly that the collective bargaining system is
flexible, and is a useful tool in the development of an optimised tele-labour
market. In 1997, HK focused on equal rights, and on self-employed freelancers,
especially when they work as teleworkers (e.g. translators). In October 1997,
HK decided to recruit freelancers, free agents and self-employed workers into
the union. Individual agreements must be
based on local agreements, and the parties must be the employing
authority/institution and an individual employee. Individual agreements can be
terminated by the employing authority and the employee with one month's notice
to the end of a calendar month, unless otherwise agreed. In any event,
individual agreements expire in line with local agreements.
Individual agreements provide a detailed definition of
the terms of a given employee's teleworking. The following elements comprise an
individual agreement:
·
the name of the
person the agreement concerned
·
name of the
location where the teleworking will take place
·
definition of the
hours that the employee is to work
·
definition of any
times when the employee can be contacted
·
guidelines for the
use of equipment provided by the employer
·
definition of any
expenses, allowances or compensation for use of own equipment
·
starting date of
the agreement
·
special rules
governing termination of the agreement
Denmark's Working Environment Act can in principle be
applied to telework; this means that the employer is liable for the tools used
on the job and for the way the work is performed.
In the Netherlands, there is a trend to decentralise agreements, rather
than completely liberalise telework. There has also been a reduction in job
security (e.g. the recent reduction of dismissal notice by the employer), and
this has become an important factor for teleworkers. In a recent study on
homeworking (including teleworking) by FNV-Bondgenoten (van Klaveren & van
der Westelaken, 2000), only five collective agreements were found to refer to
'traditional' homeworking. FNV did not find a single collective agreement on
teleworking, although it did turn up agreements to do research on the subject.
Individual contracts are pre-dominant: in a few cases, they have been developed
in co-operation with the Works Council. The study recommended that teleworking
regulations should be based on collective agreements. Promoting collective
agreements in this area will be a challenge for trade unions for several
reasons. Teleworking is growing fast in the Netherlands, and in the
researchers' opinion, the development of collective agreements on teleworking
will give the trade union a chance to attract and support new groups such as
self-employed workers (with no employees) and freelancers.
An agreement between KPN (Koninklijke PTT Nederland [telephone
services, data and Internet traffic, and Internet, call centre and media
services]) and the trade unions was signed after this study was completed; the
agreement will run from 1 April 2000 to 1 April 2001. Parties have agreed on a
policy for Teleworking at Home with a view collecting experiences on
teleworking as a way of developing such work. The agreement says that an
employee with a permanent employment contract may ask the employer for permission
to work at home on a regular basis (on average at least one day a week) using
ICT facilities. Mutual obligations will be laid down for an additional
(one-year) contract. Ultimately, the employer will decide, on the basis of the
starting points and criteria regarding job function and employee, if
teleworking is possible and desirable. A cost-benefit analysis will be carried
out to establish the consequences for the other parts of the work process. The
employer will also take care of the necessary staffing of the office or work
location, and will come to an agreement with the teleworking employee about
availability and accessibility at home, progress with the work, and ways of
keeping in touch with the company. Lastly, the employer will make arrangements
for two-way communications (e.g. staff meetings and other meetings). The
agreement also says that in order to make teleworking effective and
controllable, attention must be paid to management style, storage and security
of information (data), adjustments to work, and to other (industrial) sections
and processes.
An additional annual contract containing two-way agreements will be
concluded with employees who start teleworking. The teleworking contract may be
terminated at any time by either party. The work will be evaluated
periodically, for instance during an assessment interview. A decision will be
made about extending the annual contract by the end of the contract period.
4.4 Traditional homeworking as a basis for regulating telework: the case of Finland
The system of labour relations in Finland is quite stable. Some 81% of
all employees are union members, and the coverage rate of collective agreements
is 95% (OECD, 1994). The stability of the system suggests that teleworkers generally
enjoy the same working conditions as other workers, but individual cases are
judged more carefully than in other European countries. This is due to a long
tradition of decentralised homeworking with different regulations for many
industries, and this in turn is associated with the decentralised structure of
settlements. The monitoring problem is considerable here, as it is everywhere
else, especially with regard to working hours.
A first national meeting of union representatives on telework took place
in February 2000 in the SAK offices in Helsinki; the meeting was also attended
by representatives from STTK and AKAVA. Concern was expressed about working
conditions, and particularly about the working hours of young teleworkers
working on the Internet. SAK has provided the following report and an overview
of the current legal situation:
Under the EU Employment Guidelines, Finland has developed a National
Action Plan for Employment for modernising work organisation and supporting
adaptability in enterprises (see European Guidelines 15-17).
In Finland, the legal status of a teleworker is the same as that of a
homeworker. It may be defined on the basis of existing homeworking legislation
that regulates the conditions in the traditional homeworking industry and is
also applicable to telework. The Employment Contracts Act of 1970 states that
working at home or in a place chosen by the employee does not as such exclude
such work from the scope of the Act. A similar rule is valid for tools and
equipment.
Here, 'tele' means a local dimension in relation to the 'normal,
stationary' workplace and the absence of managerial prerogative: the focus of
the contract is telework. The exclusion of managerial prerogative (at the
worker's own request) is based on the individual contract of employment. On the
other hand, posting abroad or elsewhere does not affect the employment
relationship because the employer is using his managerial powers based yet
again on the employment contract. Collective agreements do not normally impose
an obligation for mobile work; they merely determine specific terms (e.g.
expenses, hours and allowances) that must be applied when such work is carried
out. An obligation to perform mobile work is normally written into the contract
of employment, or is based on custom and practice in the sector or occupation
concerned.
Another element dates back in history. Assistants hired by the
homeworker (they are typically family members) do not enter into an employment
relationship with the employer without his/her previous consent. This is an
exception to the general rule set out in the previous section (10). It confirms
the normal rule in the relevant industry, particularly on building sites,
whereby assistants taken on by the employee shall be deemed to enter into an
employment relationship with the employer. However, under (old) case law, the
requirement of express consent has been interpreted broadly.
In 1990, a tripartite committee published a report on 'Distance
working'. This concept covered traditional homeworking and telework performed
'at a distance.' The committee made no specific proposals for legislative
amendments; instead, it established criteria that could be used as guidelines
between the parties when agreeing the terms of their employment contract. Nor
did the committee propose any substantial changes with respect to the concept
of the employment relationship, or any specific proposals for telework.
However, the statement of reasons underlying the definition of employment
relationship builds on recent case law; this is something of a return to
freedom of contract. In turn, it means that parties to the contract have some
freedom as to the setting in which the work is carried out, and extends or
includes employers' prerogatives (i.e. managerial and supervisory functions).
The wishes of the parties (i.e. the subjective element) have been given more
weight than previously, but in the final analysis, an overall assessment of all
relevant circumstances is still decisive. The criterion of subordination is relevant
here: in Finnish terms, the employer must have the right to direct and
supervise his/her employee's work performance, however irrelevant that might
be, whether this right is exercised or not
The proposal reads as follows:
·
'This law shall be applied to a contract
(i.e. the employment contract) whereby a worker undertakes, or a team of
workers jointly undertake, to perform personally work for the employer under
his/her direction and supervision in return for wages or other remuneration.
·
'This law shall be applied even if the
payment of remuneration has not been agreed when the contract indicates that
work was not intended to be performed without remuneration.
·
'The mere fact that work is carried out
at the employee's home or in a place of his/her choice does not stay the
application of this law.'
In practice, the most important criterion of an employment relationship
is the employer's direction and supervision of the employee. It is often
unclear whether there is sufficient direction or supervision, and whether the
worker therefore is working as an employee or as an independent person.
Under employment legislation, work at home and in comparable
circumstances where the supervision of the arrangement of the work cannot be
considered to be the employer's concern is subject to special rules, and is
excluded from the scope of the following Acts:
·
hours of work
·
paid leave, where the employer is liable
to pay the amount of compensation calculated to cover an approximation of 'lost
holiday pay'. Homeworkers lie outside the scope of hours of work regulations,
and only receive a financial compensation. Collective agreements often fix a
higher percentage: in those circumstances, extraordinary holiday pay (sometimes
still called 'end-of holiday pay'), while only an agreement-based
emolument of remuneration and usually coming to 50% of statutory holiday pay,
is included in the percentage
·
occupational health and safety, where the
law usually lays down less stringent obligations
·
labour inspection: the Act prohibits
inspections except in special circumstances (e.g. there is good reason to
believe that health and safety regulations are being violated, that there is
imminent danger of an accident linked to the facilities used by the employee,
or that he/she has already had an accident). The employer has no right of entry
into the employee's home merely by virtue of managerial prerogative, even for
purposes that are otherwise legitimate (i.e. inspection and supervision of
occupational health and safety and the working environment). This is how the
conflict between the interests of labour inspection and the inviolability of
home, which is guaranteed by the Constitution, is resolved
·
special feature: the erga omnes
effect of collective agreements, Employment Contracts Act of 1970
Homeworkers, including those who do telework at home, normally benefit
under collective agreements on the same terms as workers in factories. Section
17 of the Employment Contracts Act is applicable, hence erga omnes in
respect of all employees in the employment relationship. Collective agreements
sometimes contain specific provisions on working at home, for example
exemptions from working hours provisions. Where homeworking is not specifically
excluded from the scope of a given collective agreement, the regulation of
working hours is subject to individual agreement, and is normally within the
limits set down in the collective agreement. In practice, working hours are
controlled by the employee and by piece-rate earnings.
Whether the teleworker acts as an Independent/self-employed
person depends on issues such as Who provides the premises, equipment, tools
and materials? Does the employee have one or more jobs simultaneously or
successively? and Who bears the risk of faults in the product or service? The
border-line between employee and independent entrepreneur (e.g. the
liberal occupations and self-employed people) is drawn on the basis of
specific features of the work and occupation. The relationship of subordination
is the ultimate criterion that distinguishes the employment relationship from
work performed as an independent entrepreneur. Basically the concept of the
employment relationship is uniform not only under various labour laws, but also
in tax law, although there are important exclusions in social security
legislation (e.g. the Employment Accidents Insurance Act).
Self-employed and similarly employed people can voluntarily
insure themselves and members of their families against the same risks and
under the same terms as set out in the Act. Their annual income must be fixed
in the insurance policy: this forms the basis for calculating benefits instead
of counting real average annual income. The employer can also insure employees
against risks other than those provided for by the Act, and have the scheme
protected by the Act.
The Unemployment Security Act is implemented differently, but the end
result is broadly similar. The distinction between wage earners and sole
traders is explicit because the scope of the Act was extended to cover the
latter group in 1995. The dichotomy between unemployed workers and sole traders
is maintained throughout the legislation. As far as income-related
benefits are concerned, both categories are separated, they must have their own
unemployment funds, and an unemployed employee who sets up a firm or continues
his/her occupation or profession on a self employed basis loses his/her right
to benefit – and vice versa.
There are two exceptions that are relevant to telework. For sole
traders, there is a four-month threshold from the closure of the firm/activity
to the beginning of the days that are compensated. However, this threshold is
not applicable to a sole trader who is comparable to a wage earner. For
comparability, the following requirements are: a) personal work performance; b)
a commission agreement between the contractor and (normally one)
employer/client under whose immediate direction and supervision the contractor
works; and c) the contractor has not had more than one employee at a time during
the year preceding registration as an unemployed job-seeker (part-time
entrepreneurship or self-employment).
As has already been pointed out, there are special laws that regulate
the pension rights of independent entrepreneurs. They are subsidiary to employees'
pension acts. Section 1(2) of the Self-Employed Person's Pension Act
defines an entrepreneur as a person in gainful occupation who is not civil
servant, who is not in other forms of public service or employment
relationship, and who works for remuneration.
The concept of independent entrepreneur is not defined in statutory
provisions, and Supreme Administrative Court case law is the most relevant
legal source, but the dividing-line between wage-earner and independent
entrepreneur is still vague: the same person can be deemed a wage earner in
some activities and self-employed in others. The distinction in labour
law serves only as a rule of thumb rule. People who do not come under the
definition of employee are regarded as self-employed. A definition of an
employee is to be found in Article 1 of the Employment Contracts Act: the most
reliable criterion is the employer's direction and supervision of the employee.
The telework relationship is not a concept that has any legal relevance
as such in Finland. Where telework is performed within an employment
relationship, protection against termination of employment applies in the same
way as it does to 'normal' workers, under both statutory regulations and
collective agreements. In the case of independent entrepreneurs, mutual
agreement is necessary to terminate an agreement. Both parties can opt for a
fixed-term contract. Employment contracts in force for an unspecified period
contain clauses permitting dismissal with (or, in extreme cases, without)
notice as long as there is good reason (Employment Contracts Act). Protection
against unfair dismissal is mandatory, the employee not being able to waive
his/her rights in advance.
The agreement between the client and the teleworker provides a legal
footing for regulating the conditions under which the work is performed (e.g.
technical rules), but this option is not unlimited. Contract law protects the
employee from undue conditions. If telework is done in the worker's home, the
privacy of home is protected by the Constitution.
Liability in damages is regulated by Article 51 of the Employment
Contracts Act. This provision is lex spacial in respect of the
Compensation of Damages Act of 1974: the Article referred to provides for
special rules for employee and civil servant liability. Generally speaking, it
provides for reasonable compensation in lieu of strict liability; there is no
compensation for minor negligence. The same rules apply to damage caused by an
independent entrepreneur who is comparable to an employee under Chapter III
Section 1(1) of the Act. This provision refers to the permanent character of
the assignment, the quality of the work done, and other circumstances. The
Committee reviewing the Employment Contracts Act referred to above proposes a
few amendments to the rules quoted. It also extends the obligation to
compensate damages to those that arise from willful or negligent breach of
obligations ensuing from the employment relationship other than obligations
arising from the employment contract and Employment Contracts Act (see italics
in paragraph 1, above). This may have some relevance for telework, too.
4.5 Social dialogue and social pacts in many European countries, yet no visible impact on telework
Corporatist arrangements in Sweden and Denmark lost their significance
during the 1980s. In these countries, bargaining systems were decentralised and
differentiated wage-rates were introduced without the central employers'
associations losing their strategic role (Waddington et al, 1997: 475).
Social dialogue grew in importance and new institutions were created as
a consequence in other European countries, particularly in those with weak
regulation schemes and/or no strong corporate traditions. Tripartite social
pacts were concluded In Finland (1995), Ireland (1987), Italy (1987 and 1993),
Portugal (1996), Greece (1997) and Luxembourg with a view to making workers'
more employable and enterprises more adaptable. As far as we can see, telework
does not play an important role in these pacts; they tend instead to regulate
the possibility of fixed-term work or of the introduction of new groups into
the social insurance system. The effectiveness of these pacts cannot yet really
be estimated.
The system of collective bargaining has been more radically
decentralised in the United Kingdom than in any other European country. In
addition, the UK is the only country in the EU where we can already speak of
pure 'telework careers'; to put it in another way, many teleworkers have
already had experience of teleworking in several workplaces and in several
companies. As a consequence of both these developments, many teleworkers are
more experienced at negotiating their working conditions individually than
their colleagues in mainland Europe.
When we speak of telework in the UK, we are more likely to think of
nearly full-time tele-homeworking than in other countries; in many cases, the
introduction of telework is not really reversible. This means that not every
teleworker has the individual right to re-enter normal office work. The model
MSF/ITPA agreement (draft version of March 2000) refers to telework as a type
of work that is done 'primarily at home'. It also says that the employer will
make 'every reasonable effort to relocate the employee to the place of work
prior to the telework agreement being undertaken'; if this is not possible, the
teleworker has to stay in a telework situation. Due to the high degree of
'normality' and routine in telework in the UK, there are plans for a procedure
to deal with the rejection of telework by employers. Given the absence of
institutional and political support for national or sectoral level social
dialogue in the UK, it is not surprising that there are no examples of
agreements at sectoral level: features of national bargaining are only still in
place in the public sector.
Only 1 in 3 agreements in the UK collected by the Euro-Telework project
have been negotiated with a union: agreements have been concluded between the
CWU and British Telecom (the first agreement on teleworking at Inverness, 20
January 1992), UNIFI and the Co-operative Bank, and MSF and Hallmark Insurance;
MSF has also affiliated to the National Group on Homeworking. Banks and
insurance companies are the focus of existing collective agreements. We also
know that private support structures for teleworkers individually looking for
telework have come on stream during the last few years (e.g. Internet-based
agencies, and Support Shop, Sussex).
In Ireland, telework is fairly widespread in the form of call centres:
the regulation model is partly guided by the German model and partly by the
British conditions, but the coverage of collective negotiations in new services
is weak. The government encouraged a social pact which led to the 'Partnership
for Prosperity and Fairness' between the social partners (8 May 2000): Clause
21, Framework 4 of this pact makes provision for the development of the Irish
economy as a 'telework friendly' location; this includes endorsement by the
social partners and the introduction of telework into the public services by
the government.
4.7 The weakness of collective bargaining and legislation in Spain, Portugal, Greece, Belgium and Luxembourg
The collective influence of IR institutions In Belgium is deeply
embedded in society, as it is in Luxembourg. There is no effective governmental
policy for the encouragement of telework in Belgium, excepted for long-standing
projects (with no significant success) of telework for civil servants. However,
a recent law on homeworking dated 6 December 1996, which includes home-based
telework but is not specific to it, sets out a minimum framework of obligations
of employers. As it only applies to (tele-)homeworking as a principal and
full-time activity regulated in a contractual way, it does not affect the
majority of telework situations (e.g. informal or part-time telework without a
formal change of contract). The law demands a written contract between employer
and employee, and says that the employer has to provide the equipment (see
French text of the law on http://www.ospract.org/download/loi-travaildomicile-be.doc).
A national collective agreement (CCT 39, 1984) obliges the employer to
inform the Works Council when new technology is to be introduced, and before
any decision is taken. One of the conditions of the agreement is that 'a
significant proportion of workers' (at least 10% of the concerned category)
must be affected by the new technology. However, as telework always concerns
small groups of workers doing specific tasks, the agreement is really not
relevant to them (see French text of the agreement on http://www.ospract.org/download/cct39fr-be.htm).
Recent telework agreements in the IT industry have derived from discussions on
Works Councils in which employers and employees' representatives have agreed
that individual teleworking arrangements are allowed within a defined
framework.
There are no particular laws to regulate telework in Spain, Portugal
and Greece. The social partners get no political support for a national or
sectoral level social dialogue, and the influence of unions at the workplace is
weakly institutionalised; moreover, the system of collective bargaining that
grew up in the 1980s does not even cover all traditional industries. The
situation seems rather to be more similar to what happens in the UK than in
France.
The Secretaría Confederal de Acción Sindical de CC.OO (Workers'
Commissions Confederal Secretariat for Trade Union Action) report on implementing
the law regulating telework in Spain says that there are no Spanish legal
definitions of 'telework' or 'teleworker', and no collective agreements that
regulate them. References to telework references appear in the collective
agreements of only two companies, but there happens to be one on telemarketing.
This agreement, which was signed in 1998, applies throughout the country and
regulates industrial relations in companies whose activities include
telemarketing for other companies; call centres are naturally included. There
is no telework in the public sector yet, but according to a document approved
by the Cabinet in February 2000 (White Paper to improve the Public Services),
telework will be considered (experimentally at first) to be the best tool for
improving services because of its flexibility and mobility. There are a number
of other pilot projects: most are supported by European funding, but some have
public or private contributions. Most projects are telecentres or telecottages
seeking to expand self-employment.
The legal status of teleworkers is defined in the Estatuto de los
trabajadores (ET – Workers' Statute Act) as a worker who may be an employee or
self-employed. The definition of employee is to be found in Article 1.1 of the
ET: 'a person who voluntarily provides his salaried services for another
person, the employer, under the direction and organisation of the latter'.
Subordination is necessary for the employee to have an employment relationship,
and therefore a contract of employment, whether it is written or not. If the
teleworker works in subordination to the employer, he/she will be deemed to be
an employee, and his/her relationship will be regulated by Labour Law (mainly
the ET and collective agreements). Homeworking has long been regulated by the
law and, in spite of its peculiarities, the ET does not see it as a special
labour relationship.
A definition of homeworking may be found in Article 13: 'Work done by
the worker at his/her own home or at any other place freely chosen by him/her,
without the direct supervision of his/her employer.' It also contains special
rules covering terms and conditions of employment: the contract of employment
must be in writing; a copy of the contract must be registered in the Public
Employment Office; there is a duty on the employer to give the worker a
statement containing several particulars including the worker's name, the type
and amount of contracted work, the raw materials delivered, rates of pay,
conditions of delivered work, and any other details that both parties agree to.
The contract must also state where the work is to be performed so that health
and safety issues can be monitored. Homeworkers have the same rights of
collective representation in the enterprise as other employees (i.e. full application
of rules relating to shop stewards and Works Councils as set out in the ET). In
some cases, teleworkers resemble homeworkers, but other times they work with
technical elements that directly link them to the employer, so that the latter
has, or can have, control over what work is done and when; alternatively,
teleworkers work in different places by means of mobile ICTs ('nomadic
telework').
At all events, teleworkers are employees when they provide work in a
subordinate role, and when a full employment relationship exists; however, if
they are self-employed, the relationship is governed by the Civil or Commercial
Code, and not by employment legislation. In this context, it is important to
point out that there has recently been an increase in self-employment among
teleworkers. These people work as employees but, by using ICT facilities, the
employer compelled them to change their labour status from employee to
self-employed using telework strategies. The result is deregulation of labour
market. Other employees (usually sales staff) have gradually become teleworkers
with the same contracts except for a revised relationship between employee and
employer. Many collective aspects have been excluded as a result.
The definition of homeworking therefore needs to be modified to include
all types of telework or distant work, and particularly to guarantee
voluntarism and equal treatment. Such definitions avoid the development of
'false self-employed' workers.
Collective agreements are naturally a very useful way of regulating
specific matters relating to telework in every situation. There is nothing
about teleworkers as people with an employee-like status in Spanish
legislation, although the Disposición Final Primera (First Final Disposition)
of the ET states that, 'work done by self-employed workers shall not be covered
by labour law, with the exception of those aspects referred to by the law.'
If an employer wants to recruit somebody as a teleworker, he/she
follows the normal rules governing employment contracts, and no special
problems arise. This is not the case when an employee working in a company
office transfers to being a teleworker (or vice-versa).
There are two possible scenarios. The first is when employer and
employee agree on this amendment to the contract of employment: this poses no
problem because labour law allows any change in the contract of employment by
mutual consent as long as the new conditions comply with the law and
collectively agreed rules. It is therefore necessary to back up the worker's
voluntary situation with legal rules or collective agreements (e.g. covering
maternity or part-time working) in order to guarantee its authenticity.
The second situation, a unilateral decision by the employer to impose
telework, is less clear. It may imply a breach of employment law (see Article
95(5) of the ET). Article 41 of the ET also regulates key changes in conditions
of employment such as working time, shift work, the measurement of work
completed, pay, and the type of work that needs to be performed. To propose
such modifications, the employer has to prove good reason based on economic,
technical, organisational or production circumstances. Changes may be
individual or collective:
·
individual: such changes concern
individual workers: the employer has to inform the worker and his/her
representative 30 days before the change takes effect; while the worker may
revoke the contract and receive severance pay, or even take the matter to court
·
collective: if working conditions of a
collective agreement are modified; the law provides for a special procedure
with a consultation period between employer and employee representatives in the
work place
However, Article 33 of the Ley de Prevención de Riesgos Laborales (LPRL
– Employment Hazard Prevention Law) states that it is the duty of employer to
consult in good time over decisions concerning the organisation of work and the
introduction of new technologies regarding workers' health and security.
Access to the place where the work is carried out is a problem if the
work is done at home. In these circumstances, both rights have to be
reconciled: it is necessary to draw up a protocol that observes both rights,
and harmonises Labour Inspection with the presence of representatives and, of
course, the owner's consent.
The teleworker as an employee comes under labour law. In the event of
liability for damages, this liability refers to the sanction the employer may
impose on the worker for breach of contract, and depending on the degree of
misdemeanour and sanction as set out in labour law or in the relevant
collective agreement.
The sanction is communicated to the worker in writing, and also to the
worker's representatives if it is serious. It is not possible to impose
sanctions relating to the reduction of holidays, rest periods or salary
penalties (Articles 58-60 of the ET); damage to any materials belonging to the
company, even if caused by others such as workers or their relatives, has to be
paid for by the employer.
There is still very little telework in Greece and Portugal. Collective
agreement coverage is generally increasing in Portugal, and trade unions exert
minor influence in workplaces, but information and agreements are non-existent.
Telework is not therefore high on the labour relations agenda in Greece.
INE/GSEE-ADEDY provides the following picture of social dialogue in
Greece: Any discussion regarding social dialogue with respect to the issue of
teleworking must be seen in the broader framework of the development of the
institution of social dialogue. Unlike other countries of the EU, such as
France and Germany, Greece has little experience of social dialogue; the
country also displays a number of unique features. The level of development of
social dialogue is to a large degree intertwined with the corresponding level
of mentality and culture of dialogue that is cultivated in all countries
between the social bodies and the state (Spyropoulos, 1997). In this framework,
the stifling control of economic and social policy by the state together with
strong state interventionism in the field of labour relations, in parallel with
the traditional climate of confrontation between the employers and the unions
have resulted in the idea of social dialogue, effective negotiation, and the
mentality of participation both on the national and on the enterprise levels
failing to develop (Kravaritou-Manitaki, 1986). In recent years, however, and
particularly since the early 1990s, there have been efforts to develop social
dialogue for the purpose of seeking consensual procedures and solutions to
questions of economic and social policy. A substantial contribution to this
process has been made by a general acceptance of the need for Greece to join
EMU and achieve the goals of convergence.
One important step towards the development of social dialogue in Greece
has been the setting up of the Economic and Social Committee (ESC) under Law
2218/1994, but it has not been utilised to the required degree through the
adoption in practice of its unanimous resolutions. The first real experience of
social dialogue in Greece came in 1997 in the framework of tripartite social
dialogue on the threefold issue of 'Development-Competition-Employment'. This
was the first time social dialogue with tripartite participation had been
introduced in Greece. From that standpoint, the need for and the efforts of the
parties involved to put forward documentary argumentation on basic issues of
concern to Greek society is undoubtedly a positive point. Nevertheless, the 'Pact
of Confidence between Government and the Social Partners on the Way to the Year
2000', which was signed in November 1997 and constitutes the main outcome of
this dialogue, has not produced anticipated results. This has been mainly due
to strong opposition, and to the fact that the parties have not changed their
views. The fact that teleworking is not high on the labour relations agenda in
this country explains the absence of social dialogue from the teleworking
issue.
The regulation of teleworkers' terms and conditions of employment is
included in the new industrial relations bill passed by Greek Parliament on 7
August 1998, and published as Law 2639/98 in the Government Gazette on 2
September 1998. In particular, the new law on 'Regulation of Industrial
Relations, Formation of a Labour Inspection Body and other provisions'
stipulates that no dependent labour relation is involved in agreements between
employers and workers involving provision of services or work, including
payment per unit of telework, as long as such agreements are in writing and are
communicated within 15 days to the competent Labour Inspectorate. Otherwise,
for legal purposes the labour relation is assumed to be a dependent one, and
the teleworker is considered to be a full-time contractual employee.
It is also stipulated that nine months after publication of the law,
enterprises are obliged to submit to Labour Inspectorates a complete list of
the teleworkers they employ. However, it should be noted that although
teleworking comes within the regulatory framework for all atypical forms of
employment (outwork, teleworking and homeworking), it is not defined or broken
down into individual types. This means that teleworking is not a legal category
apart from the traditional forms of provision of services, with all that that
entails for regulation of the terms and conditions of work for teleworkers. In
this framework, both employers' organisations and trade unions have pointed to
the need for a broader legislative framework that will also regulate other
issues related to informal forms of employment including teleworking, such as
social insurance and working conditions. However, on a long-term basis, it has
become necessary to define the concept of teleworking in order to create the
correct specific framework for its regulation.
4.8 Cross-border issues
Telework sub-contracted abroad introduces a new dimension into the
international division of labour; it is something about which very little is
known (see Status report on European Telework, 1998, and Transborder
teleworking: Towards the formulation of an international agenda, 2000). It is
clear that traditional physical notions used to determine the law like
'habitual place of work' or 'the place where the obligation is to be performed'
may not work for cross-border work. The ILO and the World Trade Organisation
have started to discuss aspects of cross-border telework, and still without
sizeable results, although it seems that cross-border telework is spreading
quickly into countries such as the Czech Republic, Poland and Hungary, and
tele-homeworkers are estimated to account for 5–6% of the total workforce of
Slovenia. Labour legislation in these countries does not cover telework or
homeworking, and the self-employed fall outside the scope of trade unions.
Existing labour legislation tends to encourage the use of subcontractors due to
the high costs of direct employment.
However, the ILO and the European Foundation say that cross-border
telework can create employment and open up new opportunities. In the case of
Hungary and even Russia, Lithuania, the Ukraine and Romania, highly skilled
unemployed people often undertake cross-border telework before entering the
international labour market. This step is often done by ICT and research staff
in enterprises and in universities. We can observe increasing competition by
multinational companies for Middle Eastern and European Teleworkers not only
from the EC but also from other parts of the world including the USA and
Canada. What makes the situation complicated is that the regions preferred for
cross-border telework are continuously changing. In the UK, the whole
Commonwealth is potentially a pool of cross-border teleworkers.
Cross-border work within the EU is covered by Regulation 1408/71:
Article 13 states that the law of one member state may be applied, but that it
does not cover third-country workers. If a teleworker is working under a
contract of employment as an assimilated or self-employed worker, he/she is
comes within the scope of this Regulation: this means that the employer is
responsible for employers' contributions. As employees are covered under the
system of the state where the employer lives, this is not very practical for
the employee. If work is transferred to workers outside the EU, Regulation 1408
does not apply, and this increases the problem of social security payments.
The ETUC and the ILO are continually dealing with the problem of
cross-border telework. The Convention concerning homeworking proposed by the ILO
wants homeworking employees to be given equal treatment with other employees in
the enterprise. At the moment, we know nothing about the involvement of the 500
or so existing European Works Councils in negotiations on cross-border
telework. They have been established predominantly in manufacturing, and are
therefore less important for teleworkers in services.
5. AIMS AND ISSUES OF COLLECTIVE AGREEMENTS
The aims and issues of the introduction of telework and the content of
collective agreements are of course dependent on many factors:
·
conditions protected by law need not be
negotiated at industrial or company level
·
cultural conditions leave traces behind
in national bargaining systems (e.g. attitudes towards issues like technology,
managerial control and time management)
·
the position of actors (e.g. big or small
unions, male or female teleworkers) has a certain influence on agreements
·
the spread of telework is an important
factor for bargaining systems, and for the aims and issues of collective
agreements
Many collective agreements state that highly qualified, and often male,
staff will not only be primarily recruited for telework, but will also exert a
strong influence on negotiations. Little thought is given to the questions of
child care and family support; even less consideration is given to ecological
questions such as traffic reduction (an exception is the City of Rome, but
nothing has yet come of it).
5.1 Aims of introducing telework
In many countries, mainly Germany and Austria, establishing the aim of
introducing telework has been a formal element of collective agreements. Other
aims include cost reduction (e.g. by desk-sharing), better quality of work,
flexibility of the organisation and of working hours, and better motivation of
employees. In Germany, work flexibility (mainly flexible working hours) is very
often seen as the main reason for introducing telework. Employee benefits
include improving the family situation, and a reduction in commuting. Framework
agreements and pilot projects in the Danish, French, and Italian public sectors
claim that they are elements of a strategy for introducing the information
society, and aim to increase telework and improve the quality of public
services. British collective agreements sometimes say that they hope to
introduce more flexible time schemes in the service sector.
5.2 Work spaces and the workplace
Many German contracts cover the conditions of the telework site and the
workplace in concrete terms. There is usually a requirement that the room
should be appropriate to the type of work and technical resources, and that the
workplace should meet ergonomic and safety standards. Employees often have to
receive training in health and safety regulations, and the workplace may be
visited by the employer before telework commences. German Works Councils may
also have the right to check the workplace first.
The France Telecom contract is very precise with regard to workspace
and equipment: facilities must include a safe container for documents from the
employer. In Italy, health and safety managers in companies have the right to
inspect the workplace before telework commences under agreements reached in
1997 between Confcommercio and three trade unions, although visits by company
representatives to the workplace have to be notified in advance. Such clauses
are not to be found as far as we know In UK agreements, with the exception of
the Co-operative Bank/ MSF/ITPA model agreement (draft dated March 2000) under
which the workplace is inspected by health and safety staff.
5.3 Starting and finishing telework
Most German agreements are based on the assumption that telework is
voluntary, and sometimes temporary. The initiative to start telework may come
from either side: in some cases, only management is allowed to take the
initiative on telework, but in most cases the head of department of the
teleworker-to-be and the personnel department decide about individual access.
Normally, teleworkers are selected by management. In some cases, the Works
Council's view has to be taken into account (Germany), but normally telework
can easily be terminated by either party under a contract that has to be signed
up to three months in advance; in some cases, the employer may terminate the
telework contract without listening to the employee. Only one contract states
that teleworkers have the right to a trial period on telework, and go straight
back to their previous jobs after six months; in another contract, the decision
to do telework has to be renewed once a year.
In the UK, the MSF/ITPA draft agreement includes a three-month trial
period and a three-month period of notice to end telework. The Co-operative
Bank/BIFU agreement says that teleworkers may request alternative working
arrangements an any time, and that line managers have to discuss this request
with the teleworker within 10 days, and that they must agree within 20 days
whether the job can be transferred or not; the bank may also stop their staff
teleworking under the notice period arrangements.
The France Telecom agreement also has a three-month trial period, and
either party may terminate the contract thereafter. Danish framework agreements
negotiated by the HK also include a three-month notice period to end telework.
In the only agreement in the Netherlands and in some recent German agreements,
individual telework contracts have to be renewed after a period of one year.
5.4 Status of employees and individual amendments to the working contract
It is usually stated that all other elements of the employment contract
or the legal framework may not be affected by telework (e.g. Germany and
Finland). Individual amendments to the collective agreement are necessary in
many cases (e.g. to contracts concerning stand-by activities by ICT service
staff). The same situation obtains in Italy and Austria (Austrian Oil
Industry). In Belgium, individual agreements on telework are made within the
framework negotiated on the Works Council at enterprise level. In Sweden,
Norway, Finland and the Netherlands, there are many more individual contracts
than collective agreements. A written agreement is usually necessary to start
telework in the UK. Only in Denmark, and within the scope of the commerce and
service union (HK) and in the public services, may an individual telework
contract be signed if a framework contract exists.
5.5 Organisation and type of telework
Italian agreements tend to be rather general and inclusive with regard
to typologies of remote work: they often refer to any type of telework, or even
to mobile work or call centre work. What prompts the need for a collective
agreement in Italy seems to be work that involves technical devices and new
opportunities for technical control.
Danish agreements (signed by HK) and many German agreements refer to
alternating telework as a normal and 'socially desirable' form of telework that
improves the family situation and allows the teleworker to maintain contact
with the enterprise (see the Allianz Insurance agreement). Recent studies
suggesting that teleworkers with alternating work schemes spend more time on
their work than tele-homeworkers have yet to be published. Working at home for
one day per week is often the criterion for being defined as a teleworker.
Agreements do not say much, however, about the integration of teleworkers into
the company's day-to-day operations. It is the accepted right of management to
make basic decisions regarding most organisational questions without involving
the workforce. France Telecom, too, describes alternating telework as the norm.
By contract, British agreements (e.g. British Gas/Service Joint
Committee, British Telecom/UCW and the MSF/ITPA draft agreement [which
explicitly refers to telework 'primarily' done at home]) mostly refer to
tele-homeworking or home-based work. This means that teleworkers who are only
at home for one or two working days a week are not covered by collective
agreements. It also means that the workplace at home is the normal workplace;
if that changes because the teleworker moves house, the employer assesses the
suitability of the new home workplace and has to agree to the homeworking
continuing, and may make relocation arrangements (see the Co-operative
Bank/BIFU agreement).
5.6 Qualifications and preparation for telework
This chapter remains a 'black hole' in most German contracts although,
under the BetrVG, the Works Council has a general right to be involved
in all questions of (continuous) training. Rules referring to qualifications in
the collective agreements are very rare and, if they exist at all, are rather
'weak'. The situation in most other European countries is similar. There is
little evidence of a general trend in the regulation of access to training,
only trade unions concerning themselves with his: In Finland, unions support
the development of tele-learning materials for teleworkers, and the Swedish TCO
Union model explicitly refers to the need for teleworkers' 'competence and
career development'.
Two contracts deserve special attention because of particular
regulations that they contain. The France Telecom teleworkers' contract says
that the three-month trial period should be used as an 'adaptation' period, and
that teleworkers must be given support. The BT contract includes a clause
establishing the possibility of career progression; it states that teleworkers,
'will receive details of job opportunities, general notices etc. and may apply
and be considered for posts on an equal basis with those who are not
teleworking. ... Should it be necessary, an appointment to a post can be
delayed until completion of the experiment so that the teleworker will not
forego that opportunity'.
In Germany, changes to generally agreed working times are referred to
in the Mitbestimmung (BetrVG; e.g. § 87: Abs.1,3). Overtime (and
payment for overtime, night and weekend work) is explicitly excluded by most
telework contracts; in some cases, it is expressly banned on Sundays. The
German Telekom/DPG Agreement makes a complicated distinction between those
working hours that can be determined by the employer, and those are determined
by the teleworker: the latter proportion should be as high as possible.
Overtime work has to be agreed beforehand: under the Raiffeisen agreement, all
orders sent to teleworkers after 4.30 p.m. triggers an overtime payment, and
they must be available by the phone during core hours.
The oil industry agreement in Austria states that the distribution of
working hours must be set out in writing, although the number of hours is
regulated by general agreements and the law. Italian agreements often make
provisions for the online availability of teleworkers and for 'continuity of
services'. In Sweden, working time workers' availability to supervisors have to
be negotiated with them individually, and within the framework of normal
restrictions under the Working Hours Act. The France Telecom teleworkers'
contract says that working hours must be precisely established before telework
commences, and that separate arrangements have to be made for work in the
office and work at home.
Austrian and German agreements seldom refer to matters of control: this
may be due to a relatively strong system of representation by which those
matters are regulated collectively and decisively for the whole company.
Agreements either explicitly or (more often) implicitly state that the existing
methods of controlling working hours are also used for teleworking. Technical
methods of control are subordinate to the German participation law (BetrVG),
but not in the case of telework. Companies still introducing telework often
hesitate to use technical methods to control teleworkers' working hours,
efficiency or behaviour: this means that teleworkers have to monitor their own
working hours by means of a diary or something similar.
The employer's control of the telephone and expenses is included in
some contracts (e.g. detemobil). The employer has the right to see the home
workplace for health and safety reasons and for any other reason after giving
the employee notice. In Italy where interest in aspects of technical control is
high, methods of technical control play an important role in agreements,
although we have the impression that (local) collective agreements also tend
somewhat to re-introduce technical control where it is illegal. Control by
technical means is not allowed by the basic law (Law 300/70, the 'Workers'
Rights Statute'), but conclusions drawn from information provided by technical
means must be transparent for teleworkers (Confcommercio 1997 and other
agreements). The French Telecom contract says that no technical control shall
be allowed without the teleworker's knowledge.
5.9 Participation of teleworkers in the company's communication system
Provisions for facilitating contact with teleworkers are not
particularly strong in UK agreements. Normally, communications between
teleworkers and the company are reduced to a minimum: an exception is the
Co-operative Bank where the manager has to ensure daily contact between the teleworker
and the office team, in addition to regular team meetings. The MSF/ITPA draft
model agreement demands regular weekly contacts between teleworkers, managers
and team colleagues; the cost of travelling to the company is reimbursed.
There are three cases in Germany of special assemblies being introduced
for company teleworkers (e.g. once a year in a public service department); only
in six cases is it explicitly stated that teleworkers should attend company
staff meetings. Under Austrian agreements, teleworkers have the right to
suggest dates for meetings in the office depending on their commitments. In
Denmark, particularly in the public services where teleworking is still quite
new, it is recommended that local
agreements should include an assessment of the experiment: this can be used to
define the expectations of the parties involved and criteria for measuring
them.
5.10 Special provisions for women
It is very rarely said that telework has been established to help women
or men with their childcare arrangements or educational activities (although
see the Allianz Insurance agreement). Indeed, the gender dimension seems to be
totally ignored in the context of telework, with no particular provisions being
made to ensure that women teleworkers bringing up families will not be
disadvantaged in skills development. Maybe that this is due to the fact that
many collective agreements cover highly skilled groups with a large number of
male employees. Only the Danish social partners expressly give parental leave
and equal pay a degree of priority in collective agreements. In Italy, some
agreements (e.g. Zanussi and Tecnopolis) and pilot projects (the Regions of
Lombardy and Emilia-Romagna, and the Province of Perugia) deal with this matter.
We have found no references in any other countries.
5.11 Special provisions for people with disabilities
In Germany, the likelihood of integrating people with disabilities into
telework schemes is purely theoretical, and the matter is not regulated in a
concrete way. Exceptionally, one agreement says that the type of work has to be
appropriate, and external funds have to be used to adapt workplaces. In no
other European country have we found collective agreements that include
telework for disabled people. Paradoxically, measures to recruit disabled
people are usually made under employment initiatives (e.g. Telehaus Wetter,
Germany) or by private support structures (e.g. in the UK) for teleworkers who
also try to employ disabled persons.
In most countries the employer pays for teleworkers' equipment; only in
Italy do some agreements make no mention of this issue at all. A great variety
of reimbursement schemes for additional costs can be found in Germany (between
40 and 900 DM a month, although in most cases a fixed amount), and
reimbursement is also common in Austria (e.g. AS 220 at Philips). Big companies
tend to pay less than small companies employing highly skilled staff as teleworkers:
in some cases, only telephone calls are paid for in addition to the cost of the
initial equipment (e.g. KPN Netherlands).
Travelling costs to the company's office are not reimbursed in Germany,
but in the UK, where full-time tele-homeworking is standard, these travelling
costs are paid (e.g. MSF/ITPA). Sometimes, variable costs like telephone bills
are calculated individually or the company pays for a second line (e.g. KPN
Netherlands): in the UK, British Gas and the Co-operative Bank pay their teleworkers
a workspace allowance of £140-300 a year. In Italian agreements, often only
telephone fees are reimbursed. The Confcommercio agreement and others state
that technical problems or interruptions of the line shall not disadvantage the
teleworker, and that the cost of this time must be borne by the employer.
The Danish framework agreements include allowances to
be fixed by individual agreements between the employing authority and the
employee. The scope of any expenses that cannot be accurately defined is estimated,
and the parties must agree that the employing authority does not pay out for
insignificant expenses.
5.13 Responsibilities and duties of teleworkers
Teleworkers in Germany sometimes have to be available for customer or
service calls at certain times; these clauses are usually negotiated on an
individual basis. Teleworkers also have to protect the company's data carefully
and monitor the behaviour of other people living in the household; equipment
and data are usually insured against loss and damage. Some contracts define a
worker's share depending on their contribution to loss and damage.
In Italy, teleworkers' availability is often determined in general
terms by the teleworkers themselves (Confcommercio, 1997), but under the TCO
model in Sweden, accessibility and absence (e.g. in case of illness) have to be
agreed and reported in the normal way. Under a UK agreement, teleworkers have
to organise appropriate childcare during working hours. The detemobil and
Deutsche Telekom agreements say that telework equipment must not be used for
private purposes: the employer can restrict the use of the ISDN phone by
technical means and can control connections.
5.14 Access of Works Council representatives to the workplace
At least three agreements in Germany refer to right of access.
Electronic access to teleworkers is specified in only one contract
(DPG/Telekom): here, the Works Council also has the right to control the
teleworker's work diary. In other cases, representatives may visit teleworkers
at home on request. The Oil Industry agreement in Austria permits the Works
Council to use electronic means to communicate with teleworkers, and claim
teleworkers' care costs back from the employer. In the Co-operative Bank (UK),
union representatives may visit teleworkers' homes to assess health and safety
risks.
5.15 Information and participation rights of representatives and co-management
Under about 40% of agreements in Germany, the Works Council has
established information rights concerning telework; these mainly refer to an
information right guaranteed by law (§§ 90: 1,3; 91; 99; 102; 106: 3,5; 111: 5 BetrVG).
The fact that these self-evident rights are mentioned at all implies a degree
of uncertainty about representatives' rights, but it may also be seen as a
reflection of the high-trust culture to be found in many German companies and
in the public service (Kamp, 39). It is unusual in Germany for employee
representatives to be specifically referred to as members of steering
committees: representatives have more rights than established by law in about
15 cases.
The MSF draft agreement in the UK states that when an application for
telework is turned down, the applicant may complain against the management
decision; it then has to be dealt with in a formal, transparent way. There is
only one case in Germany where a special panel has been set up to resolve
disputes. The Works Council is mentioned in only 2 of about 70 collective
agreements as an institution for the resolution of disputes.
5.17 Direct participation by teleworkers
The Italian Intersind agreement with four telecom companies has
established a commission (Article 7) to overview the telework situation: it
directly involves teleworkers, their managers and (uniquely) their families 'if
possible'. German teleworkers are often expressly involved in negotiations with
management to plan the distribution of the working hours between work at home
and work at the company; in one case, they alone are responsible for
distributing working times. Teleworkers mainly have the right to give regular
feedback to the employer and to Works Council representatives in the public
services. Belgian teleworkers are often de facto excluded from Works
Council negotiations because at least 10% of employees have to be concerned by
any changes.
Under the HK framework agreement in Denmark, trade
union representatives or shop stewards are given time deemed necessary to carry
out their duties, but they must have a reasonable amount of contact with staff
who have elected them. The Confcommercio agreements
in Italy allow union representatives to send messages to the teleworkers via
the company's normal communication channels. Union rights are only mentioned in
the three collective agreements between companies and unions in Germany; they
cannot be exercised by local contract partners. Only in the case of Deutsche
Telekom/DPG may the union play an active role in shaping working conditions;
here, too, electronic access to workers is subject to detailed regulation. The
DeTeMobil and Deutsche Telekom agreements contain a clause whereby the DPG
meets with the company every three months during the pilot phase.
Matters of occupational health and safety are not covered by collective
agreements, but by laws that do not deal specifically deal with teleworkers'
issues (e.g. VDUs.). In Sweden and Norway, however, control and checklist
systems (e.g. the list developed under the Swedish LOM programme) have been
established to ensure that management deals with teleworkers' health and safety
issues correctly, and that the design of the workplace and equipment meets the
requirements of a safe work environment (e.g. the TCO model in Sweden).
Problems of stress and dislike are not mentioned in any agreement. In the UK,
the MSF draft agreement and other agreements state that the workplace may be
visited by company health and safety officials.
5.20 The impact on other agreements
It is symptomatic of the status of telework that many regulations have
an influence on telework, but that telework agreements usually have no impact
on existing law. The standard clause to be found in German contracts is that
all other legal, pay and collective regulations for employees are valid also
for teleworkers; working time regulations in particular have to be complied
with. Only one document (Mantel-Haustarifvertrag
HBV/Genossenschaftsrechenzentrum) says that some aspects of the general
collective agreement do not apply to teleworkers. In the Nordic countries,
reference is often made to 'normal' labour law applying to teleworkers.
6. SECTORS COVERED BY TELEWORK AGREEMENTS
There are very few telework agreements in traditional manufacturing
industries; the Austrian oil industry is an exception. Most regulations have
developed in the IT and telecommunication sectors (mostly in large companies,
and mainly in Italy, Germany and Austria); they are followed by services,
banking and insurance (mainly the UK and Germany) and the public sector.
However, collective bargaining coverage tends to be lower where employment
growth is likely to be strongest (Waddington et al, 1997: 478), so current
attempts to regulate telework collectively are the result of two conflicting
trends:
·
the need to regulate problems with new
types of work in new industries
·
the trend to regulate fewer matters
collectively in these new industries
It is clear from the large number of contracts in the German public
sector that participation is more developed there than in the private sector,
although the number of teleworkers in the public sector is much smaller than in
private industry. Pilot actors include local authorities (e.g. Hamburg) and
public ICT companies (e.g. GDA Münster); public banks will follow in due
course. Telework in the public sector in Italy is developing rather slowly,
although big local authorities have set up their own pilot projects: as
previously stated, there is a basic law for public offices, and a general
framework agreement has been signed. As far as we can see, the introduction of
telework in the City of Rome has been a failure despite the existence of a
collective agreement; the local authority in Naples is still experimenting.
Official telework (not 'shadow telework') is more widespread in the public
sector than in the private sector in both Belgium and Austria. Irish and Danish
local authorities are also trying to introduce telework into the public sector.
Although many teleworkers work in the ICT field (which in IR terms is
often covered by employers' associations and unions in the mechanical and
electrical engineering industry), there are very few agreements. Collective and
enterprise-level agreements in this sector are only reached in Italy and
France. Very few ICT companies in Germany are covered by agreements: this may
have something to do with the fact that the dominant engineering union in that
country organises many more 'blue collar' than 'white collar' workers, except
in the case of Deutsche Telekom. Moreover, there are very few, if any, few
union members in smaller ICT-related companies in this sector. The number of
teleworkers in commercial services is not as high in Germany as it is, for
example, in the UK. This is due to the stability of the traditional local
branch system, which has only recently come under pressure from direct banking.
During the time of unification, however, banking and insurance companies could
only service new markets in eastern Germany by appealing to female staff who
were still bringing up families and offer them telework jobs. There are
therefore company agreements in the insurance sector (e.g. Allianz and
Wuerttembergische) and (less frequently) in banking (e.g. Baeyrische Hypo).
The ICT industry is a focus of collective agreements in Austria, as it
is in Italy. In Denmark and other Nordic countries, telework (in the form of
alternating telework due to the decentralised settlement structure) is
widespread in nearly all industries, but mainly in commerce, services and the
public sector. In Italy, there is one important industrial agreement between
the unions and some major ICT enterprises in engineering (e.g. Saritel/Cgil, Cisl,
Uil, 1994), in telecommunications and in the commercial sector. Industrial or
sectoral agreements in Italy were followed by similar agreements between unions
and companies, or by agreements between union joint representative bodies
inside a company and the company itself. Agreements of this sort were
negotiated in many enterprises in the telecommunications industry between 1994
and 1996; it is normal for all unions representing the employees of a company
to take part in those negotiations and to sign the contract. In the UK,
regulations on telework mainly cover the banking and insurance sector, where
MSF is a major partner in collective agreements.
Big multinational and national enterprises in the ICT sector (e.g.
Siemens and IBM) tend to regulate telework by collective agreements adapted to
national and local conditions with local representatives, but not at the level
of the company as a whole. The outcomes of these negotiations vary from site to
site and from country to country, and depend on national conditions and
employees' bargaining power employees. Sometimes, local solutions are more
advantageous for employees than the results of collective bargaining at a high
institutional level (e.g. SNI Paderborn and SNI Sweden). Exceptions include
former national monopoly telecommunications companies as Deutsche Telekom and
Telecom Italia, which tend to develop nationwide solutions. Many big
multinational companies and companies with important international activities
outside the EU prefer local agreements, and still hesitate to extend the scope
of their closely limited pilot schemes (e.g. Lufthansa).
Our study shows that wherever a single union covers a branch or many
branches or big companies (e.g. GPA in the ICT sector in Austria, DPG at
Deutsche Post AG, and MSF in the UK), it is easier to reach collective
agreements than when many unions cover parts of the sector, or even compete
within companies (e.g. DAG, HBV and IG Metall in the German IT industry, and
HBV, DAG and ÖTV in the German banking sector).
7. OPEN QUESTIONS AND NEGLECTED PROBLEMS
There appear to be important gaps in most collective agreements. In
general, aims as postulated in Die soziale und arbeitsmarktspezifische
Dimension der Telearbeit (1997) are not elements of collective agreements,
although there are some exceptions in the public services. That means that
issues like access to telework infrastructures, social cohesion, the
development of high standards of services, integration of disabled people,
career development for women, job creation, urban development, traffic flow and
the management of structural change are outside the scope of most agreements,
and are therefore left to government action. Even training is ignored by many
contracts. Problems of stress and often the monitoring of shift systems and
working hours seem to be neglected by telework research, and also by collective
agreements even if the legislation is sufficient, as it is, for example, in
Finland. Only the TCO model (Sweden) includes a clause whereby telework is
reviewed once a year as regards the work environment, workload, and other
benefits and disadvantages.
Gender and equal opportunities are not addressed by collective
agreements or, to be more precise, there are no concrete procedures for
establishing equal opportunities. The more important a problem is, the more the
selection of teleworkers depends on a few line-managers and personnel managers.
This could lead to non-transparent and unjust selection procedures and no way
of complaining against the decision. Only one draft agreement (the MSF model)
provides the teleworker with a chance to complain if his/her application for
telework has not been considered. Procedures to deal with rejections for
telework seem to be necessary as telework expands.
From recent studies (Korte & Wynne, 1996) and some pilot schemes in
Germany in which the author participated (e.g. Lufthansa), we know that there
is a danger of 'forgetting' teleworkers as far as their career and personnel
development needs are concerned, despite the fact that workers' inadequate
knowledge (followed by management and communication problems) is seen as the
main obstacle to the introduction of telework. So one major problem is that the
managers have seldom been trained to deal adequately with the new phenomenon of
telework. Another question is whether companies in the future will recruit more
self-employed teleworkers who are willing to pay for the costs of their own
training and skills development.
According to some German studies on pilot projects, Works Councils are
worried about teleworking jobs being adapted to 'simpler' tasks that can be
easily controlled. 'Neo-Taylorism' has been discovered to be a major problem in
recent years, and mainly in call centres. The problems of vocational training
and career opportunities for teleworkers have not yet been discussed at all,
and have not been dealt with in collective agreements, so far as we can tell,
although many training providers have developed tele-training modules.
Some agreements and contracts have even included counter-productive
mechanisms. German agreements seem to promote the right of individual
line-managers to decide whether an employee is allowed to do telework or not.
Even if personnel departments are involved in the decision, agreements like the
one at Allianz Insurance reinforce the individual right to decide who may, and
who may not, do telework. Lack of transparency in career decisions may be
supported by an over-emphasis on the influence of individual managers and an increase
in the dependence of individual employees.
In contrast to these issues, the demands and requirements of European
trade unions concerning telework used to be focused on matters such as equal
pay, 'two days a week in a central office', 'no (or not too many) home visits
by the manager' and 'the company providing proper equipment' (see Bosch,
Webster & Weissbach, 2000: 115). Unions and Works Councils have obviously
reached successful agreements in these areas.
8. COMMON
TRENDS AND DIVERGENCES
At first glance, the sectors, companies and regions in which agreements
have been negotiated suggest that telework is still a male-dominated activity
largely performed by well-qualified professionals mainly in urban areas (e.g.
the ICT sector). While it was assumed some years ago that the 'second wave of
telework' (Di Martino, 1997) would include more and more part-time telework or
'alternative' telework, some European countries like the UK, the Netherlands
and Finland are seeing an increase mainly in full-time tele-homeworking.
In general, the direct participation rights of (tele-)workers'
representatives are relatively weak in most European countries, although there
are strong general collective participative structures in countries such as
Germany and Austria. Sometimes, teleworkers are de facto excepted from
direct participation schemes in the implementation of telework because their
numbers in relation to the total workforce are usually too small (e.g.
Belgium). We think that poor direct participation is preventing teleworkers
from making use of traditional channels of representation, and that as a result
they prefer to negotiate with their employers on their own. Where union
organisation is less strong, many direct representation schemes will lead to
unions being excluded or contribute to employee commitment.
In Germany, representatives enjoy no direct, general participation
whenever telework is introduced, but Works Councils have a de facto
strong position based on the BetrVG/AVG. The collective bargaining
system has remained stable in Germany and Austria, although Oeffnungsklauseln
have been introduced under pressure from smaller enterprises. In practice,
decentralisation involves a wider range of issues negotiated by the Betriebsraete
(Works Councils) than before.
Despite functioning systems of representation and participation, the
process of 'normalisation', at least of part-time telework, has made people
realise that telework for one or two days a week can cause a lot of IR problems
that need to be carefully regulated. As part-time telework is increasingly
being regarded as 'normal', it is often accepted that it is not covered by
collective negotiations, but by individual arrangements.
In countries with lower union density (e.g. France) and/or with a
tradition of labour unrest (e.g. Greece), governments have played important
roles in regulation by labour law and in the control of labour relations, in
this way partly replacing the trade unions and compensating for the lack of influence
of a representative system. In France and Italy, there have been attempts to
integrate the regulation of telework into the system of laws governing the
information society. Moreover, the situation in Italy evinces examples of both
centralisation and decentralisation, as sectoral agreements are followed by
company agreements and pilot schemes in the public services, sometimes by law.
In Italy, the local unions or their representative bodies in the companies have
a similar de facto position without the strong legal base that they
enjoy in Germany.
In the Nordic countries, governments play an important role in the
systematic development of the information society, and use telework as an
opening strategy. In Denmark, the public sector has reached agreements or
protocols with the unions to create a stable framework for the development of
telework. Here we can speak of an extremely centralised strategy that is no
longer an element of traditional IR, but rather of an experiment in societal
transformation towards the information society. Maybe this experiment has only
been possible because Danish industry consists entirely of small firms. In
these circumstances, the need for coordinated action is more strongly felt, and
employers' associations and trade unions give the government much credit for
it. By contrast, there is a general trend to decentralise collective bargaining
in countries that are different from the UK, the Netherlands and Sweden. In
Sweden, telework is seen as a working method that needs to be weakly regulated
(e.g. health and safety checklists).
The trend to decentralisation is due not only to political intervention
leading to a weakening of the collective bargaining system (e.g. in the UK), or
to a lack of collective regulation at industrial level, or to the increasing
influence of neo-liberalism as a consequence of globalisation; it is also due
to the differentiation and increasing heterogeneity of the workforce itself.
The growing individualism of highly skilled workers, for example in the Netherlands
and the Nordic countries, has both damaged the representative system of IR, and
increased individuals' autonomy to deal with their working conditions. It has
involved a shift from industrial or neo-corporatist bargaining to enterprise,
or even individual, level.
The complete restructuring of the workforce around new industries has
contributed to an increase in the number of more local settlements (Waddington
et al, 1997: 477), and corporate restructuring has lead to a break-down of
workers' solidarity. Small groups have learned to develop their own local
bargaining power in a form that suits them. These conditions can be expected to
have a big influence on all attempts to regulate telework in the future. It
follows that the 'situationist' approach to IR seems to be reinforced by
comparison to the 'systemic' approach. Negotiations will take place when
problems actually, and not when they are expected to arise. This transformation
can be seen mainly in countries with less strong traditions of corporatism such
as Ireland and the UK.
For structural reasons and for many cultural reasons, too, the
institutional form of decentralisation differs from country to country, and
this makes it difficult to establish, or even identify, 'best practice'. In
some countries, traditional law has been used to regulate telework; in other
countries, old law has not been applied for unknown reasons, or else new law
has been passed. In some countries like Austria, the system of labour relations
also deals more or less successfully with the negotiation of conditions of
telework. In this report, we have described the 'durability and diversity of
national systems of collective bargaining' (Waddington et al, 1997: 486) with
regard to telework. National trajectories may be even more important today than
they were 15 or 20 years ago.
What we can find, however, is a certain convergence of the factual results (not of the style or level) of the collective bargaining processes,
whether at industrial or enterprise level, in Germany, Italy, Austria, the UK,
and Sweden. This means that matters and issues of regulation (e.g. equal pay
for teleworkers, no change of status, voluntary telework, equipment provided by
employer, restriction of managers' home visits, 1-2 days a week in the central
office, limited technical control, and the right to return to the core team)
are similar in most countries, although the legal basis and the systems of
negotiations on which these agreements are founded differ from country to
country. (UK agreements have slightly different priorities.) If we dare to
interpret the material a little further, we might say that the more agreements
are detailed and in favour of teleworkers, the lower the level at which they
had been agreed. This may have something to do with the shortage of qualified
ICT staff. The result is a degree of conflict
between the scope
of the agreements and detailed regulation,
which often favours teleworkers. As more and more issues of
working conditions are handled within the workplace, the unions need to provide
their members with support at workplace level, and make contact with
teleworkers by means of electronic communications.
11. RECOMMENDATIONS
·
Finding a harmonised balance between
flexibility of working conditions and social security is crucial
·
Regulation must prevent employers
unilaterally changing working conditions, disregarding the needs of
teleworkers, and even taking advantage of their individualised working
situation and forcing them to accept worse conditions than regular workers
·
Teleworkers must be included in any
existing systems of collective representation
·
Representatives of trade unions or Works
Councils must have access to teleworkers
·
The ETUC recommendations should be
supported:
Teleworking should be negotiated in all cases between workers'
representatives and the firm that wishes to introduce teleworking. Anyone who
adopts teleworking should do so voluntarily, and retain their status as an
employee. The conditions for teleworking should be laid down in a collective
bargaining agreement
Atypical and precarious working conditions are widespread among
teleworkers. Protection through social security, access to health insurance and
unemployment benefit are urgently required for all. Employee status for
teleworkers would offer the best solution for problems in relation to social
security
If teleworking is carried out for various employers, social security
contributions should be paid in the country where the teleworker is employed.
Social security thresholds should be lowered to guarantee social security cover
for all
For teleworkers, it is very important that they should retain their
rights to worker participation. Employee representatives should also be
responsible for teleworkers, and they should also have the right to meet at
regular intervals. This would be extremely important for teleworkers working
mainly at home. The opening up of corporate networks for trade union information
would be important with regard to the concern for guaranteeing teleworkers
rights to participation
There should be clear rules for data protection and privacy.
Teleworkers must be entitled to disconnect from the network. Rules are required
with regard to the supervision of teleworkers.…
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