WoW analysis of the RDL 28/2020 of September 22nd on remote work

From the platform Women of the World We think it is a step forward that teleworking has finally been regulated in Spain, due to its urgent and necessary nature for families, at least through the Council of Ministers, although the ideal would have been through parliamentary procedure to submit it to debate and public opinion. Due to our great involvement in the matter and in the light of our recently published report, we have carried out a brief analysis of the legal issues that have aroused our most interest.

The declarative part of the regulation speaks of the "genuine right to reconcile family life through the use of flexible forms of work, including distance working formulas".[1]on the basis of EU Council Directive 2019/1158 on reconciling family and working life for parents and carers.

This is only a statement of intent, as no specific measures are taken throughout the legislation to ensure that workers with children under the age of eight have a preferential right to request flexible working arrangements to devote themselves to their caring duties, as required by European legislation.

In the same vein, the Government boasts with this norm that "progress is being made in the fulfilment of target 8.5 of the 2030 Agenda for Sustainable Development, that is, to achieve full and productive employment and decent work for all women and men, (?) as well as equal pay for work of equal value...".[2]

We remind you that the so-called wage gap is a fallacy, since women earn the same salary for the same work as a person of the opposite sex. The lower pay for women in the long term is mainly due to the fact that women tend to give up their professional career in favour of enjoying their maternity, choosing shorter working hours, opting for leaves of absence, preferring part-time jobs, and rejecting promotions and promotions to take care of their young children.

As mentioned in our report Telework: work-life balance at your fingertips? the royal decree-law also recognises the same advantages of the virtualisation of labour relations, such as ?greater flexibility in the management of working time and breaks; greater possibilities, in some cases, of self-organisation, with positive consequences, in these cases, for the reconciliation of personal, family and working life?[3] On the other hand, disadvantages are mentioned such as ?difficulties associated with the lack of basic services in the territory, such as digital connectivity or services for the reconciliation of work and family?[4]

Going into the normative part, the second chapter of the regulation is dedicated in its articles to explain the voluntariness, the reversibility, the written agreement and its consequent modifications always agreed by both parties. Two rules stand out in this section, which are interesting for the family perspective that WoW intends this rule to reflect in Spain and the rest of the countries in the world.

On the one hand, Art. 4 dedicated to equal treatment and opportunities and non-discrimination establishes the following: in its third paragraph it refers to non-discrimination on the grounds of sex by the company either directly or indirectly; in its fourth paragraph it talks about the necessary measures against various types of harassment; and in its fifth paragraph it mentions that people who work remotely have the same rights regarding conciliation and co-responsibility as those who work in the office, such as, for example, the right to adapt the working day, so that work does not interfere with personal or family life.

WoW regrets that this article does not specify employment discrimination on the grounds of maternity in general, and the mobbing Maternity protection as an aggravated form of workplace harassment suffered by women of childbearing age who want to have children, or who are pregnant, and even those who already have children of preschool age and need teleworking more than any other worker to care for their babies or young children.

On the other hand, Art. 8 on the modification of the remote work and prioritization agreement refers to the mechanisms and criteria that must be included in collective bargaining agreements in order for the employee to switch from face-to-face to remote work and vice versa, taking into account the concurrence of certain personal or family circumstances, on the textual condition that ?in the design of these mechanisms, the perpetuation of gender roles and stereotypes must be avoided and the promotion of co-responsibility between women and men must be taken into account, and must be subject to diagnosis and treatment by the equality plan that, where appropriate, corresponds to apply in the company?[5]

The final part of the regulation mentioned in the previous paragraph contradicts the autonomous and concerted spirit of the agreement between worker and company? Why is the Government so obsessed with imposing a single form of conciliation in society when the aim of regulating teleworking is to facilitate that parents have the margin to choose how and where to work and at the same time to organize the distribution of tasks in their home according to their own priorities and needs?

We invite you all to read our report on the subject.