WoW's analysis of RDL 28/2020 of September 22, 2010 on telecommuting

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 made a brief analysis of the legal issues that have aroused our interest.

The declarative part of the regulation speaks of "the genuine right to the reconciliation of family life through the use of flexible forms of work, including remote work formulas".[1]based on EU Council Directive 2019/1158 on the reconciliation of family and professional life for parents and caregivers.

This is only a declaration of intent since, throughout the legislation, no specific measures are adopted to ensure that workers with children under eight years of age have a preferential right to request flexible working arrangements to devote themselves to their care obligations, as established by European regulations.

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

We would like to 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 careers in favor of enjoying their maternity, choosing shorter working hours, opting for leaves of absence, preferring part-time jobs, and turning down promotions and promotions to take care of their young children.

As mentioned in our report "Teleworking: work-life balance at your fingertips". the royal decree-law also recognizes the same advantages of the virtualization of labor relations, such as "greater flexibility in the management of working time and breaks; greater possibilities, in some cases, of self-organization, with positive consequences, in these cases, for the reconciliation of personal, family and working life".[3] In contrast, 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 explaining voluntariness, reversibility, the written agreement and its consequent modifications always agreed by both parties. Two rules stand out in this section, which are interesting in view of the family perspective that WoW intends this regulation to reflect in Spain and the rest of the countries in the world.

On the one hand, Art. 4, dedicated to equal treatment, equal opportunities and non-discrimination, establishes the following: in its third paragraph, it refers to non-discrimination on the basis 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 the fifth, 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 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 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 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 so much obsession on the part of the Government in imposing a unique form of conciliation in the society when what it is about regulating telework is to facilitate that the parents have margin to choose how and where to work and at the same time to organize the distribution of tasks of their home according to their own priorities and needs?

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