62 - European Framework Agreements and Telework: Law and Practice: a European and Comparative Study

Table of Contents

Introductory Remarks 1

Chapter 1

The European Social Dialogue: A General Introduction 11

Jackie Morin

I. Background 11

II. What Place Is There for Social Dialogue at European Level? 12

III. Main Communications from the EU Commission 13

A. Communication of 1993: Representativity and List of

Organizations 13

B. Communication of 1998: Institutionalization of the Sectoral

Dialogue 14

C. Cross-Industry Social Dialogue Committees 15

D. Communication of 2004: Social Dialogue (SD) Outcomes 16

IV. Social Dialogue Outcomes 17

V. The Telework Agreement 18

A. The Process 18

B. The Agreement 19

C. Autonomous Agreements – Challenges 20

D. The Commission’s Role 23

E. Autonomous Agreements – Expectations 24

VI. Conclusions and Where to Find out More 24

Chapter 2

The European Social Dialogue and Voluntary

Framework Agreements 27

Roger Blan Pain

I. A New Strategy 27

A. Aim 27

B. Implementation and Follow Up 28

C. Comments 29

II. The Voluntary Agreement on Telework of 16 July 2002 29

A. General Considerations 30

B. Definition and Scope 31

C. Voluntary Character 31

D. Employment Conditions 32

E. Data Protection 32

F. Privacy 32

G. Equipment 33

H. Health and Safety 33

I. Organization of Work 34

J. Training 34

K. Collective Rights Issues 34

L. Implementation and Follow Up 34

Chapter 3

Implementation of the European Framework Agreement

on Telework 37

Report by the European Social Partners, Adopted by

the Social Dialogue Committee on 28 June 2006 37

I. Foreword 37

II. Introduction 38

ii Table of Contents

III. Dissemination Activities 39

A. Translation of the EU Framework Agreement 39

B. National Dissemination Activities 40

C. Transnational Dissemination Activities 41

D. The Choice of Instruments: Ranging from Social Partner

Agreements to Tripartite Activities 41

E. Social Partner Agreements 43

F. National, Sectoral and Company Level Collective

Agreements 45

G. Standard Company and Sector Agreement Models 47

H. Guides and Codes of Good Practice 48

I. Implementation through National Legislation 49

J. Other Tripartite Activities 50

IV. Key Issues in the Implementation 50

A. Definition and Scope 51

B. Voluntary Character 51

C. Employment Conditions 56

D. Data Protection 56

E. Privacy 57

F. Equipment 58

G. Health and Safety 60

H. Organization of work 61

I. Training 62

J. Collective Rights Issues 62

K. Implementation and Follow Up 63

V. Conclusion 64

VI. Annex: Framework Agreement on Telework 65

VII. Where to Find out More 69

Part II - National Reports 71

Chapter 4

Australia 73

Emma Keating and Di van den Broek

I. Introduction 73

II. The Potential Future of Work 75

III. Telework and Work/Life Balance 76

IV. Telework: Australian Statistics 78

V. Regulating Telework 81

VI. Impediments to Teleworking as a Right 82

VII. Legislative Assessments and Conclusion 84

Table of Contents iii

Chapter 5

Belgium 89

Roger Blanpain

I. Introduction and Background 89

A. Telework on the Move 89

B. A Diversified Picture 90

C. Telework and HRM 91

D. Free and Transparent 91

E. Not for All Jobs 91

F. Not for Every Employee 91

G. Integration 92

H. Clear Arrangements 92

I. Pay 92

J. Structural and Ad Hoc Insurance 92

II. Home Work – The Act of 1996 93

A. Generalities 93

B. The Act of 6 December 1996 94

III. The Act of 26 July 2006 – Telework 96

A. Scope of Application 96

B. Work Rules 96

IV. The Collective Agreement No. 85 of 9 November 2005 96

A. Purpose 96

B. Definitions and Scope 96

C. Nature of the Telework Contract 97

V. Conclusion 102

Chapter 6

Belgium 103

A discussion on the Collective Bargaining Agreement

No. 85 on Telework, Implementing the European

Framework Agreement on Telework 103

Chris Engels

I. Introduction 103

II. Voluntary Character of Telework 103

A. Entering Employment as a Teleworker 103

B. Becoming a Teleworker in the Course of the

Employment Relationship 104

iv Table of Contents

C. Returning Back to ‘Normal’ – Ending Telework 105

D. Formal Aspects 105

E. Refusal to Get into Telework 106

III. Organization of Work 107

IV. Equal Treatment 108

A. Principle of Equal Treatment 108

B. Difficulties in Making a Comparison 109

C. Unequal Treatment as Provided by CBA No. 85 110

V. Follow Up 112

Chapter 7

E-Monitoring the Teleworker: Belgian and Dutch

Law in an International Perspective 113

Frank Hendrickx

I. Introduction 113

II. The Reference in the Telework Agreement to

Privacy and Data Protection 114

III. Fundamental Right to Privacy in a European Context 115

A. European Convention on Human Rights 116

B. Charter on Fundamental Rights 118

IV. European and International Regulation of

Worker Data Protection 118

A. Council of Europe Conventions and Recommendations 119

B. European Directives 120

C. Working Party Opinion 8/2001 on Worker Data Protection 122

D. Complementing Working Party Instruments 124

E. International Labour Organization (ILO) 125

V. Employee Privacy and E-monitoring in Belgium 125

A. General 125

B. Electronic Monitoring 126

VI. Employee Privacy and E-monitoring in the Netherlands 138

A. General 138

B. Electronic Monitoring 141

VII. Synthesis 142

A. Monitoring of Professional Communication by the

Employer is Generally not Disputed, but it is Conditional 142

B. Monitoring of ‘Private’ Communication is

Generally Reserved for Exceptional Cases 146

C. The Issue of Permanent Monitoring 150

Chapter 8

France 153

Jean-Emmanuel Ray and Jacques Rojot

I. Introduction 153

II. Main Issues Raised by Telework in French Labour Law 155

A. Telework Within the Meaning of the French National

Interoccupational Collective Agreement and Related Situations 155

B. Articulation of Bargaining Levels 157

C. Access to Telework and Return to the Enterprise’s Premises 158

D. Telework and Respect of Private Life 160

E. Telework, Working Time and Rest Periods 161

F. Telework and the Right to Interrupt the Connection 162

G. Collective Rights of the Teleworker 163

Chapter 9

Germany 167

Manfred Weiss

I. Introduction 167

II. The Works Council’s Role in Monitoring Telework 169

III. The Content of Work Agreements on Telework 173

IV. Conclusion 176

Chapter 10

Italy 177

Michele Colucci

I. Introduction 177

II. The EU Framework Agreement 179

III. The Italian Legislative Framework 180

IV. Telework in the Public Administration 181

V. The Italian National Agreement on Telework 183

VI. Sectoral Agreement: Telework in the Commerce Sector 185

VII. Company Agreements 186

A. The Tim Company Agreement 186

B. The Electrolux Zanussi Agreement 187

VIII. Conclusion 187

IX. References and Further Information 188

A. Legislation 188

B. Laws 188

vi Table of Contents

C. Collective Bargaining Agreements 188

D. Websites 188

Chapter 11

The Netherlands 189

A.T.J.M. Jacobs

I. Introduction 189

II. The Legal Position of Teleworkers in The Netherlands 191

A. The Voluntary Character 191

B. Employment Conditions 192

C. Data Protection 192

D. Privacy 192

E. Equipment 193

F. Health and Safety 193

G. Civil Responsibility for Work Accidents and Occupational

Illnesses

194

H. Organization of Work 195

I. Training 195

J. Collective Rights 195

III. The Legal Nature of Telework 196

IV. The Implementation of the Framework Agreement in

The Netherlands 198

V. Conclusions 201

Chapter 12

Poland 203

Andrzej Swiatkowski

I. Introduction 203

II. Telework and the Polish Labour Code 204

III. Conclusion 213

Chapter 13

Sweden 215

Birgitta Nystro¨m

I. Telework in Sweden – an Introduction 215

A. Frequency and Definition 216

B. Advantages and Problems – Equal Opportunities 217

II. Labour Legislation and Telework 218

A. Work Environment 219

B. Working Time and Annual Holiday 220

C. Collective Labour Rights 220

D. Employment Protection 221

III. The Voluntary Character of Telework: Collective

and Individual Agreements 222

IV. Implementation of the Framework Agreement 223

V. Concluding Remarks 226

Chapter 14

The United Kingdom 227

Alan C. Neal

I. Introduction 227

II. Defining ‘Teleworking’ 229

III. A Legal Definition for ‘Teleworking’? 231

IV. The Problem of ‘Voluntary’ Agreements in the United Kingdom 234

V. Measuring the Extent of Teleworking in the United Kingdom 236

Chapter 15

United States of America 241

Alvin L. Goldman

I. American Views Concerning the Value of Telework 241

II. Extent of Telework in the United States 243

A. Generally 243

B. Federal Government Sector 244

C. State Government Sector 245

D. Private Sector 246

III. Legal Rules Affecting Telework 247

A. Jurisdiction with Authority to Regulate or Decide 247

B. Jurisdiction Whose Law Controls the Decision 250

C. Choice of Whether to Work at Home 252

D. Teleworker’s Status as an Employee 254

E. Wage Payment Laws 255

F. Equal Employment Opportunity Laws 257

G. Family and Medical Leave Act 260

H. Worker Adjustment and Retraining Notification Act 261

I. Occupational Safety and Health Regulations 261

J. Employee Social Insurance Benefits 263

K. Organizing and Representing Workers 266

IV. Conclusion 267

Chapter 16

IBM’S on Demand Workplace Strategy in a Nutshell 269

Christian Dirkx

I. Introduction 269

II. On Demand Workplace 270

III. Objectives and Description of On Demand Workplace 271

A. Needs 271

B. Mission 271

C. The Project 271

IV. Legal Aspects 273

V. Results of the Project 274

A. Conclusion: a ‘Win-Win-Win’ 274

B. But Not Without Pitfalls 275

VI. Conclusion – Revisited? 279

Introductory Remarks

I. EUROPEAN VOLUNTARY AGREEMENTS: FROM SOFT

TO LIQUID LABOUR LAW?

The European Forum on Telework took place on 1 and 2 September 2006 in the

Palace of the Royal Flemish Academy in Brussels, with the support of the Academy.

The forum focused on various aspects of European labour law.

First, on a fundamental one: the significance and importance of framework agreements

between the European social inter-industry partners, namely the Union of

Industrial and Employers’ Confederations of Europe (UNICE), the European Centre

of Enterprises with Public Participation and of Enterprises of General Economic

Interest (CEEP) and the European Association of Craft, Small and Medium-Sized

Enterprises (UEAPME); employer organizations; and the European Trade Union

Confederation (ETUC) — trade unions — as a source of European labour law.

A first agreement was concluded on telework (2002), a second on stress at

work (2004). Future framework agreement topics may include lifelong learning

and gender equality.

These agreements testify the ‘autonomy’ of the European social partners. Indeed,

the social partners act on their own without institutional help from the

Blainpain et al., European Framework, Agreements and Telework, pp. 1–8.

#2007, Kluwer Law International BV, The Netherlands.

Commission, the Council of Ministers or the European Parliament integrating their

agreements into legally binding European directives. These ‘voluntary’ agreements

stand on their own.

These framework agreements are labelled ‘voluntary’ in the sense that they intend

not to create legally binding obligations between the concluding parties, or impose

them on their national constituents. They merely put, it seems, a ‘moral’ obligation

on the European social partners to recommend the content of the agreement to their

national members—employer associations and trade unions—namely to implement

the European agreement in their own countries in accordance with local law

and practice.

The main question is then whether these agreements constitute a new way

of developing European employment law, or the main way? Legally binding

directives seem difficult to agree upon between 25 Member States, even with a

system of majority voting. So could framework agreements do the job, underlining,

at the same time, the important legislative role social partners may play at European

level, and giving an additional dimension to the European social dialogue?

The first question, then, concerns the role of framework agreements in the

shaping of European labour law: an additional way or a main way?

Secondly, the agreements are voluntary. But this is nothing new. Indeed, all

framework agreements are voluntary. Here voluntary does, however, have another

meaning, namely that the agreements, as mentioned above, do not intend to create

legal obligations between contracting parties. This seems to be an English

approach, as under English law collective agreements do not create legal obligations,

as parties do not intend to do so.

Is this also the case in relation to the constituent members of UNICE,

UEAPME, CEEP and the ETUC? The telework agreement states that it shall be

implemented by the members of the contracting parties. This seems to imply an

obligation. The question is whether it is a legal obligation. This could be the case,

depending on the by laws of the contracting European organizations, and whether

or not membership implies that the national constituents are bound by the decisions

of their mother organizations. If this is the case, could then the European mother

oblige the national daughter to comply? Could a teleworker or a member of a

daughter do so and engage in legal action in order to obtain appropriate social

protection as provided for by the European framework agreement?

The answer to these questions will co-determine the effectiveness of the

framework agreement approach.

A third question is equally important but of a more practical nature: does he scheme

work? How do the national social partners implement the European framework

agreement? How effective are the local ways?

It is, self evidently, a fact that these ways differ enormously from Member

State to Member State.

Indeed, in some countries the legislator plays a role; in other countries interindustry

wide collective agreements have been concluded, some of which have

been extended by governmental decree and are enforced by way of penal sanctions.

In still others there are sectoral agreements or even mere recommendations.

A number of questions arise: Are all workers covered by the benefits of the

framework agreement? And are we heading for a social Europe with two speeds,

one where the social protection is guaranteed and eventually sanctioned penally,

and another where mere recommendations are the rule?

Another set of questions relate to telework itself. One of the main questions concerns

the definition of telework. According to the framework agreement, regular

telework is meant to be performed away from the premises of the employer. This is

a very wide definition covering telework at home or at premises chosen by the

workers, as well as mobile workers performing e.g. at the premises of a client, and

teleworkers employed at satellite offices. In certain countries, like Belgium,

however, telework is limited to work at the home of the teleworker or at premises

chosen by the employees. Is it a problem that, in these instances, a more restrictive

definition has been retained at national level?

Moreover, non-structural, non-regular, occasional telework is not covered. It

seems that in practice most telework is done in an informal way. How can we move

forward with this information? And where should we draw the line between regular

and non-regular telework?

Other points dealt with in the framework agreement concern the voluntary

character of telework, employment conditions, data protection, privacy, equipment,

health and safety, organization of work and training, and collective rights

issues, which also raise a number of questions.

Still others arise when an international relationship is involved: the teleworkers

work in one country and the employer is situated in another Member State.

So a lot of ground had to be covered in this European Forum on Telework!

II. PROGRAMME OF EVENTS AND EXCHANGE OF VIEWS

1 September 2006

Welcome and Introductory Remarks

Professor Roger Blanpain, Universities of Hasselt and Tilburg

1. Professor Birgitta Nystro¨m (Sweden) sent in a paper, which is published in this book.

Telework in Motion

The IBM case, Mr Christian Dirkx, Human Resources Manager

The General Motors case, Mr Bob Schelfhaut, Human Resources Manager

Soft Law and Voluntary Agreements

Mr Jackie Morin, European Commission, Social Dialogue

Soft Law and Voluntary Agreements

Mrs The´re`se de Liedekerke, Director of UNICE, Social Affairs Department

Mrs Maria Helena Andre´, ETUC

The European Framework Agreement on Telework

Prof. Manfred Weiss, University of Frankfurt

Telework in the USA

Prof. Alvin Goldman, University of Kentucky

IMPLEMENTATION OF THE FRAMEWORK AGREEMENT

INTO NATIONAL LAW

The Way of Implementation of the Agreement (Legislation, Collective

Agreement, Guidelines . . . )

The Netherlands, Prof. Frank Hendrickx, University of Tilburg

United Kingdom, Prof. Alan Neal, University of Warwick

Definition of Telework and Scope of Application of the Agreement, including

the Public Sector

Belgium, Prof. Frank Hendrickx, Universities of Leuven and Tilburg

Germany, Prof. Manfred Weiss, University of Frankfurt

France, Prof. Jacques Rojot, University of Paris

Italy, Prof. Michele Colucci, University of Salerno

The Voluntary Character of Telework. Organisation of Work. Equal

Treatment

Belgium, Prof. Chris Engels, University of Leuven

Italy, Prof. Michele Colucci, University of Salerno

United Kingdom, Prof. Alan Neal, University of Warwick

Data Protection and Privacy

Belgium & the Netherlands, Prof. Frank Hendrickx, Universities of Leuven

and Tilburg

Germany, Prof. Manfred Weiss, University of Frankfurt

2. Replacing Professor Andrzej Swiatkowski (Poland), who sent in a paper which is also published in

this book.

2 September 2006

IMPLEMENTATION OF THE FRAMEWORK AGREEMENT INTO

NATIONAL LAW

Equipment and health and safety

France, Prof. Jacques Rojot, University of Paris

Poland, Prof. Sebastian Koczur, Jan Dlugosz Academy

Follow up

Belgium, Prof. Chris Engels, University of Leuven

France, Prof. Jacques Rojot, University of Paris

Italy, Prof. Michele Colucci, University of Salerno

Collective rights

United Kingdom, Prof. Alan Neal, University of Warwick

Italy, Prof. Michele Colucci, University of Salern,

The Netherlands, Prof. Antoine Jacobs, University of Tilburg

Poland, Prof. Sebastian Koczur, Jan Dlugosz Academy

Closing Remarks

Roger Blanpain

The discussion was too dense and rich to be summarized in detail, so we have

limited ourselves to some of the main points.

The road of the voluntary agreements, engaged in by the European social partners,

seems to be ‘the’ new way of developing European labour law. These agreements

are voluntary in the sense, the ETUC explained, that they, the social partners,

choose freely to deal with the topic of telework — full stop! The ETUC added

that it had a mandate from its national constituents to negotiate an agreement and

that these national members were bound to an effective follow up, leading to an

implementation of the agreement in the national framework of law and/or practice.

The European Commission said that the European social partners rightly

underlined that they were acting on the basis of Article 138 of the EC Treaty,

which gives the partners a full European mandate to negotiate agreements, according

to European law.

As a consequence, we may have to deal with a (new) category of a source of

European labour law, a new kind of European Act, open to interpretation by the

(European) Court of Justice.

Both the social partners stressed that they left it to the national ‘actors’ to

implement the European agreement as these actors (legislator, government, social

partners at all levels, etc.), saw fit. This self-evidently leads, as mentioned earlier,

to a great variety in the way of implementation, from legally binding rules to mere

recommendations. This did not seem problematic to the European partners, as this

outcome corresponds to the local ways and the expectations of the local actors.

Introductory Remarks 5

Both social partners seemed to fully agree on the approach, content and outcome.

Moreover, they worked hard to convince and encourage local partners to

come to results.

This development, however, leaves the future of European labour law in a

rather weak situation.

The implementation of the European agreements, according to national — very

weak — ways, means that since binding European directives are not any longer

possible, European labour law depends for its development on:

(2) Local ways, which do not guarantee all workers the same rights to social

protection. The national ways may rely on soft law, if not on totally liquid

approaches.

Some participants to the forum wondered whether the ‘voluntary European

agreements’ are merely serving the needs of the European social partners looking

for a ‘credible’ role and usefulness at European level, instead of aiming at setting

(firm) social standards on which workers can rely.

The question was also raised as to whether the Telework Agreement has really

added value, since the various points dealt with in the agreement, such as the

voluntary character of telework, the health and safety aspects, privacy, training

and so on, are already guaranteed in most national legal systems.

III. CONCLUSION

So European labour law can be seen as almost at a standstill, due also to the (overtowering)

role of managerial power aiming at more flexibility and refusing new

(rigid) labour market rules, thus affecting social protection.

In a sense, these developments also express the overall need to consider the

revision of existing labour law, given the changing framework where social protection

is geared away from static ‘job security’ to a more dynamic ‘employability’,

aiming at employment security, and providing workers with increased

competencies to find new jobs in an ever faster, changing labour market.

It seems also that the only real source of (classic) European labour law in the

future is the European Court of Justice, which is continuing to interpret the existing

European employment provisions, including general principles of law, in a traditional

and pro-European way.

Indeed, politicians seem powerless to generate traditional social protection at

national level, as they want to attract foreign investment at all costs. Social partners

3. They could not agree on information and consultation and on temporary work agencies.

seem less and less representative, leaving room for management to take appropriate

(socially-economic balanced) action, while defending their own interests. Management

has more social responsibilities than ever.

Labour law faces difficult times, entering a period—as soft law evolves—of

even more subtle forms of ‘liquid’ law.

We are heading for a ‘new world of work’ with less (traditional-rigid) social

protection, towards a more open labour market, where skills and personal efforts

will be rewarded.

Roger Blanpain

President of the Human Sciences Section of the Royal Flemish Academy of Belgium