Teleworking

The new work model that has arrived in Greece

Given the conditions that have developed in the last few days in our country, a large number of companies are turning to the solution of employing employees with remote work, the so-called teleworking or smart working.
This pioneering form of employment for Greece (given that it began to be implemented abroad much earlier) has already been adopted and implemented, already at the beginning of this year, in the Italian company HITACHI RAIL STS SPA (formerly ANSALDO STS SPA), in the employed staff at the Branch it has established in Thessaloniki.
The process of joining telecommuting, from a legal point of view, is particularly simple, as the employee’s employment contract is amended to adapt to the telecommuting model and to define the individual details of the employment method (e.g. working hours, employer benefits such as a laptop etc. to enable telecommuting, etc.), in order to protect the rights of the employees as well as the employer.
Our law office has already proceeded with the relevant study of the applicable legislation applicable to teleworking and its implementation, on behalf of the Italian company HITACHI RAIL STS SPA (formerly ANSALDO STS SPA), by amending the employment contracts of its employees, in order to adapt to the legislative framework of Greece for teleworking.
Below are some theoretical analyzes of teleworking in Greece and Europe, as well as a relevant table of the appropriate actions for the modification of existing employment contracts.

The institutional framework for teleworking in the EU
The regulation of teleworking in the European Union is defined by the European Framework Agreement on Teleworking which was concluded between the European Social Partners in 2002, based on Article 139 of the EC Treaty, following a relevant recommendation of the European Council.

European Framework Agreement on Teleworking (EFTA)
The European Framework Agreement on Teleworking (EFT) has as its stated objective the formation of a general institutional framework for teleworking at the European level which will contribute to the encouragement and development of teleworking, “in a way that goes hand in hand with flexibility and job security and to avoid the deterioration of the general level of protection of workers” (Article 1). The Agreement establishes the general principles of the voluntary nature of teleworking (Article 3) and of ensuring the same rights of teleworkers as comparable workers within the premises of the enterprise. The ESPT also defines the responsibility of the employer for the provision of appropriate equipment and technical support as well as the coverage of the cost of provision, and especially of telecommunications, but at the same time leaving significant room for flexibility to employers and employees. Finally, a series of individual issues related to data protection, privacy protection, health and safety are regulated, but following a minimalist approach. That is, the obligations of employers and employees are not listed in detail, but are referred to the existing regulations deriving from the Community acquis (e.g. Directive 91/533/EEC regarding the employer’s obligation to inform the employee of the conditions governing the contract or the employment relationship, Framework Directive 89/391/EC on health and safety. in health and safety but following a minimalist approach. That is, the obligations of employers and employees are not listed in detail, but are referred to the existing regulations deriving from the Community acquis (e.g. Directive 91/533/EEC regarding the employer’s obligation to inform the employee of the conditions governing the contract or the employment relationship, Framework Directive 89/391/EC on health and safety. in health and safety but following a minimalist approach. That is, the obligations of employers and employees are not listed in detail, but are referred to the existing regulations deriving from the Community acquis (e.g. Directive 91/533/EEC regarding the employer’s obligation to inform the employee of the conditions governing the contract or the employment relationship, Framework Directive 89/391/EC on health and safety.

The institutional framework for teleworking in Greece
In Greece, the ESPT was integrated into the National General Collection of Labor Contracts 2006-2007 and since then it has been an integral part of the currently applicable EGSSE. Law 3846/2010 “Guarantees for occupational safety and other provisions” also includes provisions related to teleworking. In particular, Article 1 of the law (which replaces a previous provision of law 2639/1998) introduces a rebuttable, positive presumption of the existence of dependent labor if the teleworker provides his work “in person, exclusively or mainly to the same employer for nine (9 ) continuous months’.
Also in Article 5, some basic issues that were considered not adequately covered by the EGSSE are regulated and concern: ∙ The employer’s obligation to inform the employee in writing 8 days after drawing up the contract on all issues related to the execution of the work. ∙ The establishment of a three-month adjustment period during which it is possible to unilaterally revoke the conversion of normal work to telework, either by the employer or by the employee. ∙ Strengthening the ESPT’s provisions regarding the employer’s obligation to cover the cost of teleworking.
The obligation of the employer to inform the employee within 2 months of the conclusion of the contract about the identity and contact details of the staff representatives in the company.
The main problems with the existing legal framework of telework do not come so much from the provisions on telework which, as mentioned above, are largely based on corresponding European ones. The problems stem from the multiplicity, complexity and overall rigidity of Greek labor legislation which fails to incorporate the expanding principles of flexibility and variability that govern modern “post-industrial” societies. For example, although part-time teleworking is not prohibited by the existing institutional framework, it is difficult in practice to combine it with regular work on a daily schedule/basis, and there are conflicting interpretations as to whether the business is covered in the event of an audit by the competent authorities. In order for a business to be completely legal, either telework days must be strictly predetermined (e.g. every Wednesday), or the employment contract must be revised every time the teleworker’s schedule changes. It is obvious that none of the above two solutions is practically applicable, with the result that companies use teleworking for the benefit of employees, but with the risk of a different interpretation of the law by the respective control mechanisms.

Checklist with basic steps for telework implementation
A) Targeting: a) Documented assessment of needs, implementation possibilities, projected costs and risks, b) Determination of intended goals and Performance Measurement Indicators (KPIs)
B) Scope of application: a) Determination of eligible positions/roles in which teleworking is possible, b) Auxiliary use of personal criteria (e.g. time management ability) in order to enable teleworking, but without a “punitive” logic
C) Institutional framework: a) Formation of teleworking policy in which they are reflected the conditions and procedures for affiliation/revocability and the mutual obligations/rights of the employer and teleworkers, b) Adjustment of employment contracts based on what is described in the telework policy
D) Infrastructures/equipment: a) Availability of PCs and telecollaboration systems, b) Regulation of telecommunications and other equipment costs, taking into account the provisions of Article 7 of the ESPT and par. 3, No. 5 L.3846/2010
E) Health & Safety: a) Informing teleworkers about the company’s policy regarding health and safety in the workplace, b) Agreement on the working conditions control mechanism and signed self-commitment of the teleworker to comply with the hygiene rules and security
F) Data security: a) Use of secure connections for communication with company systems (e.g. VPN), b) Adaptation of used equipment to the agreed security levels, c) Consent of customers – third parties for the processed, off-site data
G) Implementation: a) Pilot application to draw key conclusions, b) Installation of a monitoring mechanism: measurement and evaluation based on KPIs, c) Ensuring employment conditions (timetables, non-access of third parties, etc.)
H) Human Resources Issues: a) Documented information for telecommuters ( within 8 days) on all matters relating to the performance of the work, including any arrangements for remote standby, b) Ensuring equal treatment with other employees in terms of workload, performance criteria, access to training and collective rights, c) Taking measures to avoid “isolation” of telecommuters, d) Configuration / adaptation of a performance evaluation system.