New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

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Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

In cases where the home office framework is agreed upon at the beginning of the relationship, it must be carried out after consultation with a union representative.

Last updated on 21/09/2021

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Australia

  • at People + Culture Strategies

Whether an employer has an obligation to consult with or involve a union when introducing remote-working arrangements, and the extent of any influence the union can wield to determine how the remote-working arrangement will be implemented and managed, will depend on the terms of any agreement between the employer and the union.

It is our understanding that some Australian unions are looking to negotiate specific policies with employers to provide mechanisms and practices designed to support employees and employers to facilitate remote-working arrangements.

Last updated on 21/09/2021

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Austria

  • at Littler
  • at Littler
  • at Littler

Especially regarding home office work, the Austrian legislature has clarified that such work requires an agreement between employer and employee.  At the same time, however, the legal possibility was established to determine framework conditions under which home working can take place within a company through a works agreement. At this level, employee representatives (the works council) can therefore help to shape the implementation of remote working. However, the conclusion of such a works agreement is voluntary and cannot be enforced. Nevertheless, employers should inform the works council before introducing home working, as the works council has a general right to information, which in our opinion also includes the introduction of remote working.

In addition, various collective agreements for entire industries also lay down framework conditions for teleworking, although their implementation also requires an agreement between employer and employee.

Employee protection in the context of mobile working is already guaranteed by the fact that relevant worker protection laws also apply to remote work in their essential provisions. In practice, works agreements regularly provide for employers to undertake a workplace evaluation to ensure the health and safety of its employees.

Last updated on 21/09/2021

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Belgium

  • at Van Olmen & Wynant

Based on CBA No. 149, a consultation is required. Article 4 of the agreement differentiates how its principles can be applied: by collective labour agreements concluded at a company level; by an amendment to the work regulations; by individual agreement; or by duly communicated teleworking policies. In each case, they must be drawn up under the rules of consultation within the companies and any competent bodies or, in the absence of such bodies, with the workers, taking into account the particular conditions applicable to the company.

Last updated on 21/09/2021

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

Employers are not required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement. The CLT establishes, in brief, that: the remote-working arrangement must be part of an employment contract or amendment thereof; the change to a remote model must be made by mutual agreement between the parties; and employers can shift back to the regular model by informing employees with at least 15 days’ notice. Considering that the remote model is quite recent in Brazil (as an actual model provided under the law) and that the overall employment rules apply to remote workers regardless, with a few exceptions (eg, exemption for time tracking), unions have neither had any influence nor been active in challenging changes in working arrangements. During the pandemic, some unions have been more focused on ensuring that companies were observing the health and safety measures recommended by the Ministry of Health and the WHO, rather than on the working arrangement itself.

Last updated on 21/09/2021

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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

Remote-working is implemented within a collective agreement negotiated with the unions or, failing that, within a charter drawn up by the employer after the opinion of the new works council if it exists (article L.1222-9 of the labour code).

The collective agreement or, failing that, the charter drawn up by the employer specifies:

  • The conditions for switching to remote status, in particular in case of a pollution episode, and the conditions for returning to performance of the employment contract without remote working;
  • The terms of acceptance by the employee of the conditions of implementation of remote status;
  • The modes of control of the working time or regulation of the workload;
  • The determination of the time slots during which the employer can usually contact the remote worker; and
  • The modes of access to a telework organisation for disabled workers.

The way of negotiation seems to be prioritised by the legislature. Apart from those mandatory clauses, the social partners have every interest in being a force of proposals, which will be accepted or refused by the employer. If the unions refuse to sign the agreement, the employer may provide for these measures in the framework of a charter, which it may implement after the opinion of the new works council (non-binding opinion).

Finally, in the absence of a collective agreement or charter, when the employee and the employer agree to telework, they may formalise their agreement by any means.

Last updated on 21/09/2021

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Germany

  • at CMS Hasche Sigle

In Germany, employers are not required to consult or involve trade unions or other employee associations when a remote-working arrangement is introduced. Employers can, however, voluntarily enter into negotiations with the union to make arrangements for mobile work at the collective bargaining level.

More important is the involvement of the works council. The works council does not have a say in whether the employer allows mobile work. However, if the company has decided to allow remote working, the works council must be fully involved in any further arrangements. This includes, for example, the distribution of mobile work and office work, work equipment, the design of tasks, data privacy issues, working time and accessibility, and any plans for monitoring workers during mobile work. This is especially true after the Works Council Modernisation Act came into force in 2021, as Victoria Kaule and I have described elsewhere.

Last updated on 21/09/2021

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Greece

  • at Kyriakides Georgopoulos Law Firm
  • at Kyriakides Georgopoulos Law Firm
  • at Kyriakides Georgopoulos Law Firm

Remote working is agreed with each employee through the signing of a written agreement that should include all elements of the remote arrangement (ie,  equipment, costs to be covered by the employer, the employee’s right to disconnect, health and safety measures during the remote-working arrangement etc).

However, according to the new law, 4808/2021 the technical and organisational measures required for the implementation of the employees’ right to disconnect must be agreed upon between the employer and the employee’s representatives. If no agreement is reached, the aforementioned measures must be communicated to the employee in writing.

Last updated on 21/09/2021

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Hong Kong

  • at Lewis Silkin
  • at Lewis Silkin
  • at Lewis Silkin

As the local pandemic situation in Hong Kong has been relatively stable, remote-working arrangements have been dealt with in more of an ad hoc fashion with many employers not putting in place formal remote-working policies.

Generally, there is no statutory obligation to consult with trade unions in Hong Kong on implementing remote-working arrangements. Some companies may, however, have policies in place that require them to consult with trade unions before making changes to employees’ terms and conditions of employment. Collective bargaining is not recognised in Hong Kong, so even if consultation with trade unions does take place, any change to employees’ employment contracts has to be individually consented to by each employee.

Last updated on 11/10/2021

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India

  • at Nishith Desai
  • at Nishith Desai

Unless there are unionised employees in the workplace or collective bargaining agreements necessitating an employer to negotiate the terms and conditions of employment to maintain industrial harmony, employers are not required to consult or otherwise involve a trade union when introducing a remote-working arrangement to their workplace. In such cases, as long as employee consent is procured for implementing such change in the employee’s service conditions, unless there is contractual right available to the employer to automatically do so, it should be possible for the employer to implement such change. Any influence of the union in this respect will have to be assessed based on the scale of operation of the employer, nature of operation of the employer, percentage of unionised employees in the establishment etc.

Last updated on 18/11/2021

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Ireland

Ireland

  • at Littler

No, unless there is a collective bargaining agreement in place that imposes such a requirement. Ireland operates a voluntarist approach to trade union recognition, which means that there is no mandatory recognition of trade unions, and so they have limited (if any) influence in non-unionised workplaces.

Last updated on 21/09/2021

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Italy

  • at Toffoletto De Luca Tamajo

Generally, No. In some cases, National Collective Bargaining Agreements (NCBAs) may provide a specific obligation to inform and consult unions.

Furthermore, in the context of Covid-19 emergency, companies have set up internal committees, formed by a) a representative of the employer b) representatives of the employees (i.e. Works council and Representative of the workers for health and safety “RLS”) and c) the company’s occupational doctor, to periodically monitor the effectiveness of the safety measures implemented by the company and, if necessary, amend or confirm them.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

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Mexico

  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo

By legal definition, teleworking must be included in the respective collective bargaining agreement (CBA). The terms and conditions of the CBA for teleworkers shall include all the relevant and special conditions of the services. Teleworkers enjoy equal rights when compared to those applicable to standard employees, including training, salary, health, social security and the right to remain employed. The implementation of teleworking is voluntary and must be agreed in writing; therefore, it is negotiated by unions. However, teleworking can be unilaterally determined by the employer in the presence of force majeure that impedes the continuity of standard services.  

Last updated on 21/09/2021

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

As long as there is no collective labour agreement in place, which gives rise to any relevant co-determination rights of trade unions on this matter, there is, in principle, no involvement of a trade union required when a remote-working arrangement is being introduced. Employers can, however, voluntarily enter into negotiations with the union to make arrangements for mobile work at a collective bargaining level.

In case a works council has been installed (obligatory to install for companies with more than 50 employees), their involvement for the introduction of a regulation on remote working seems mandatory. The works council might have the following rights related to the intended remote-working policy.

  • The works council is entitled to receive all information reasonably necessary for the performance of its duties, also when an employer intends to introduce a remote-working arrangement. In principle, it is up to the works council to decide what information it reasonably needs. The company can impose on the works council a duty of confidentiality on all information provided.
     
  • Prior consent of the works council is necessary for the introduction (or modification or withdrawal) of a remote-working policy based on article 27 of the Dutch Works Council Act (WOR). The company must submit any intended decisions in this respect in writing to the works council, together with a summary of the reasons for the proposal and the anticipated consequences for employees. Before the works council makes its decision, at least one consultation meeting between the employer and the works council on the subject must take place. If the works council does not give its consent to the proposed decision, the company may request the Cantonal Court to approve the decision. The Cantonal Court may only grant approval if the works council’s refusal to grant approval is unreasonable, or if the company’s proposed decision is based on important business-organisational, business-economic or business-social reasons.

    If a remote-working arrangement is introduced without the consent of the works council or the Cantonal Court, it shall be rendered null and void. This is, however, only the case if the works council so advises the company in writing within one month after the company has notified the works council of the decision or, in the event no notification has been given, within one month after becoming aware that the decision is being implemented or applied by the company.
     
  • Furthermore, the implementation of a remote-working scheme may require consultation with the works council if it falls under the scope of article 25 WOR (eg, when major investments are to be made for the benefit of the company or if important technological facilities are to be introduced or modified). Before rendering its advice, the works council and the company will then need to deliberate on the matter at least once in a consultative meeting, which means that the company is obliged to join such a meeting and provide the works council with the requested information. The company has to give the works council a reasonable amount of time (in practice four to eight weeks, depending on the matter) to render its advice.

The works council can render positive advice, positive advice with some conditions that have to be taken into account in the company’s decision, or negative advice. If the advice of the works council has not or not in its entirety been followed (eg, if the works council rendered negative advice or positive advice with conditions that have not been taken into account by the company), the company must inform the works council of the reasons for not following the advice. This will cause a delay in the process as the employer must suspend implementation of the decision for one month after the date on which the works council was notified of the decision. During this month, the works council has the opportunity to appeal to the Court of Appeal. The only possible ground for appeal is that the company could not have reasonably reached its decision, having properly weighed up the interests involved.

If the decision conforms fully with the advice (or the works council rendered positive advice on the intended decision), the employer can directly implement the decision.

If staff representation is installed, which is mandatory for companies between 10 and 50 employees, co-determination rights could apply in terms of, inter alia, the introduction of a remote-working policy.

More information can also be found here

 

Last updated on 08/03/2022

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Poland

  • at Bird & Bird
  • at Bird & Bird

Yes, employers are required to consult and agree with the trade unions or employee representatives on the terms and conditions of teleworking policies. However, if no agreement is reached by the parties within 30 days from the date draft teleworking regulations are presented by the employer, the employer is free to introduce the teleworking policy as prepared, considering the arrangements made with the trade unions or employee representatives when negotiating their terms.

There are no similar requirements related to temporary pandemic-related remote-working arrangements that can be introduced by an employer without consultation, negotiation or other consent of the employees or their representatives.

Last updated on 21/03/2022

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

No, this level of intervention regarding remote-working and telework arrangements is not available to unions.

At the most, unions can ask for information on general teleworking regimes that employers may wish to agree with employees under the general guidelines of the Portuguese Labour Code, since unions are entitled to be informed about decisions that are likely to trigger substantial changes in the organisation of work or employment contracts.

Nonetheless, please note that collective bargaining agreements may introduce specific terms regarding teleworking and remote-working regimes.

Last updated on 21/09/2021

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Qatar

  • at Clyde & Co
  • at Clyde & Co

There is no requirement for consultation. Workers’ committees can mediate and provide recommendations for the employer’s consideration and have the ability to conclude collective-bargaining agreements; however, their influence in altering working arrangements is limited.

Last updated on 08/11/2021

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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

Not applicable – please see question 18.

Last updated on 29/11/2021

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

As mentioned before, employers must provide the works council with a copy of the remote-work agreements and notify them of any change to such contracts. They are only entitled to share their opinions on the contract and the labour conditions with the employer. But the works council cannot change a remote-working agreement, unless they challenge the decision and a court grants it.

Last updated on 21/09/2021

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Sweden

  • at DLA Piper
  • at DLA Piper
  • at DLA Piper

If an employer is bound by a collective bargaining agreement, the employer, as a main rule, should request and conclude trade union negotiations before implementing an obligation to work remotely. Trade union representatives can present their views on this arrangement in the negotiation. However, a trade union cannot alter or veto the employer's homeworking arrangements (assuming that the collective bargaining agreement does not prohibit remote working). That being said, a trade union may take action if there are deficiencies in the working environment for employees working from home.

If the home-working arrangement is voluntary for employees, there is generally no obligation to perform trade union negotiations. The trade union, however, has a right to be informed about any changes relevant for employees under section 19 of the Swedish Co-Determination (in the workplace) Act.

If there is no collective bargaining agreement in place for the employer, there is no obligation to request trade union negotiations. Depending on the individual circumstances (eg, if it is a permanent solution and if the employment agreement allows for such a change of workplace) an agreement with the individual employee may be required for the employer to impose an obligation to work remotely on employees.

Last updated on 21/09/2021

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Switzerland

  • at Lenz & Staehelin

In general, there is no obligation to consult with unions if employers want to introduce remote working in the company.

If employers are planning to introduce forced remote working on a long-term basis, the implementation of this change would require a termination-modification (ie, a termination of the contract coupled with a new job offer).

Last updated on 30/09/2021

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Turkey

  • at Gün + Partners
  • at Gün + Partners
  • at Gün + Partners

The Regulation on Remote Working is silent about employee rights arising from collective labour law. However, collective bargaining agreements can regulate the execution, content, and termination of individual contracts. Therefore, remote working may be regulated as part of the content of an individual contract. As per article 41 of the Act on Unions and Collective Bargaining Agreements, unions to which at least 1% of workers in the relevant field of business are a member can execute a collective bargaining agreement for a certain business or workplace, provided that more than half of the workers employed at the workplace or 40% of the workers employed in the business are members of the union at the application date.

In this regard, the Banking-Finance and Insurance Workers Union announced that they raised this issue in their collective bargaining processes. As remote working has only become widespread during the covid-19 pandemic and the Regulation on Remote Working entered into force only recently, the influence of unions on working arrangements would vary depending on the negotiation process and their relations with employers.

Last updated on 21/09/2021

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UAE

  • at Clyde & Co
  • at Clyde & Co

Not applicable – refer to question 18.

Last updated on 08/11/2021

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United Kingdom

  • at Littler

Union activity in UK workforces is lower than in many other countries.

There is no legal obligation to consult a union about introducing a remote-working arrangement, unless there is a collective bargaining agreement in place that imposes such a requirement, or the employer habitually consults a relevant union about this.

Last updated on 25/11/2021

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United States

  • at Littler
  • at Littler
  • at Littler

Unionised employers may unilaterally implement a policy requiring employees to work from home if the applicable collective bargaining agreement contains language granting the employer the right to implement such a requirement. Unilateral action also would be permissible if a local, state or federal law mandates working remotely for certain classifications for employees. Even in that case, however, the employer would still have an obligation to bargain over any discretionary aspects of the policy, such as:

  • classes of employees subject to remote work (unless specified by the order);
  • frequency and timing;
  • consequences of an employee’s refusal; and
  • where the remote work will be performed.

Other provisions in a collective bargaining agreement may cede control over the situation to the employer. For example, the CBA may include a “management-rights provision” which permits the employer to operate and manage the workplace, require standards of performance, implement improved operational methods and procedures, or promulgate rules, regulations and personnel policies.  Even if the clause does not explicitly address the issue of working from home, it may be argued that the union has waived its right to bargain over the matter. 

Employers with union-represented employees need to carefully review existing collective-bargaining agreements to determine whether there is sufficient management rights language that would permit an employer to mandate working from home as a condition of employment.

Furthermore, to the extent an employer seeks to avoid a bargaining obligation by claiming that working from home is consistent with a local, state, or federal law or regulation, it will need to show that it is actually mandated by the law to require this.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021