In the aftermath of the COVID-19 pandemic, the home became the office for millions of employees around the world. This sparked a conversation on the concepts of ‘remote work’ and ‘remote employees’. Since the pandemic, the global community is moving toward embracing novel approaches to address the challenges of changing work dynamics in an increasingly technologically connected world. Concerning the legal dimension, existing labour laws have proven inadequate in safeguarding certain rights infringed upon by these contemporary developments, namely the distancing of the worker from the workplace. Consequently, there is an imperative need to adapt labour laws and establish a standardised legal framework in response to such issues. This article seeks to discuss and analyse the subject from both domestic and international law perspectives.
An overview of remote work
The notion of remote work or ‘work from home’ is not a novel development of the 21st century, but rather has its roots in the 1970s. Prior to the COVID-19 pandemic, around 260 million people were working remotely, approximately representing 7.9% of total employment in 2019. With the onset of the pandemic, this number drastically increased to 560 million by 2020. Since the pandemic, remote working has remained in some companies, while others have turned to a hybrid working format.
While remote work has proved beneficial in response to the unanticipated circumstances arising from the pandemic, it has also brought with it several challenges. With the operational and technical difficulties associated with remote work, managing remote work has also created several issues in complying with labour laws. Nevertheless, it should be acknowledged that most States and international organisations have undertaken preliminary measures to bring remote work within the framework of labour rights, namely with working hours and unionisation.
Maximum working hours
One essential component of labour rights is the worker’s entitlement to a maximum number of working hours. Labour laws set restrictions on the maximums hours of work a worker can undertake to safeguard the worker’s health and prevent them from being exploited by their employers.
Article 23(1) of the Universal Declaration of Human Rights (UDHR) states that everyone has a right to just and favourable working conditions. Article 7(d) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) states that ‘Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays’ fall under the right to just and favourable working conditions.
Similarly, Article 31(2) of the Charter of Fundamental Rights of the European Union provides for the employee’s right to a maximum limit of working hours, daily and weekly rest periods, and an annual period of paid leave. The International Labour Organisation (ILO) has also set standards on maximum working hours and mandatory rest periods across several conventions. The ILO Standards 2020 on Telework (Page No: 10) state that it is crucial to make sure that all teleworkers (people who work from home using their computers and phones) are completely covered by national legal rules on maximum daily and weekly working hours, overtime, breaks, daily and weekly rest, and annual paid leave.
While it is easier to monitor and enforce working hour restrictions in offices, remote work methods present significant obstacles. It is more difficult to supervise and calculate the number of working hours of remote employees. In the Irish case Kepak Convenience Foods v O’Hara, the Irish Labour Court found that O’Hara had worked more than the legal maximum number of hours by sending and receiving emails outside of working hours. According to the European Foundation for the Improvement of Living and Working Conditions (Eurofound), 41% of regular home-based and 24% of occasional telework or ICT-based mobile work employees reported having less than 11 hours of rest. This demonstrates how these rights can be violated in the context of remote work.
To combat this, certain countries have implemented a ‘right to disconnect’. This right provides employees an entitlement to disconnect from their phones and laptops after work hours to avoid working overtime and exceeding their contractual working hours. For example, in 2016, France passed an amendment to its Labour Code allowing employees to keep their phones switched off outside of working hours. Belgium and Italy have also established the right to disconnect through legal provisions. In Australia, under the National Employment Standards, both onsite workers and remote workers are covered and subject to the same working hours restriction, which is an indication of equality among both types of workers. A ‘right to disconnect’ for remote workers around the world would be a positive development to ensure that they are not made to work overtime while at home to ensure a fair work-life balance and to protect their rights under the ICESCR and ILO conventions.
Unionisation and collective bargaining
The freedom of association enables employees to form unions and promotes collective bargaining for equitable working conditions. By enabling workers to form a team together, it guarantees a fair and cooperative working relationship with employers.
Article 23(4) of the UDHR formally recognises the right of individuals to join trade unions to protect their interests under the broader right to work. A similar right is protected under Article 8 of the ICESCR. This right is also protected under the ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (Convention No. 87). The commitment to the protection of the same right was echoed under the ILO Declaration on Fundamental Principles and Rights at Work, 1998.
Despite the recognition of the importance of this right across various international legal instruments, as well as its implementation in domestic labour legislation, it is questionable whether collective bargaining rights are extended to remote workers as well. The physical distance that exists in virtual work environments impedes collective bargaining, discourages spontaneous conversations, and makes it difficult for staff members to present a united front during negotiations or effectively voice problems that they have in common.
Certain States have implemented initiatives to ensure that remote workers enjoy the same collective bargaining rights. In Belgium, remote workers’ collective bargaining rights are governed by a national Collective Bargaining Agreement. Under Article 10 of this Agreement, remote workers have the same rights to consult or communicate with workers’ representatives as workers in the office. Similarly, remote workers in Portugal are considered employees of the company for all purposes of collective representation organisations, and they are eligible to apply to become members of those structures. Additionally, under Article 171 of the Portuguese Labour Code, employees can participate in meetings with their representatives using the ICT tools supplied for teleworking, and representative organizations can use them to convey information. This is a positive indication that employers are also concerned about labour rights and assisting remote employees in safeguarding those rights.
While certain States have implemented positive initiatives to extend labour rights to remote workers, the current state of labour rights for remote workers is noticeably unsatisfactory in developing nations, such as Sri Lanka. The laws already in existence that were intended for traditional workplaces have not undergone the necessary changes to adequately address the specific challenges associated with remote work. There are particular concerns about the freedom of association and collective bargaining in the context of remote labour that are not well addressed. Developing countries have been slow in adopting complete legal frameworks due to a number of issues, such as low technological infrastructure, resource scarcity, and a lack of understanding about the changing nature of work in the modern era.
Consequently, remote workers in these countries face challenges and disparities in legal protection, impeding their ability to exercise fundamental rights and engage in collective bargaining. For example, according to the Global Remote Work Index (2023), India is in a worse situation regarding remote employment due to the lack of infrastructure and the social circumstances of its population. A rapid and proactive approach is essential to eliminate this gap, ensuring the establishment of equitable and standard legal frameworks that effectively ensure the rights of remote workers in developing countries.
As mentioned above the countries are in the process of modernizing their legal systems to reflect advancements in technology. Countries in the Global North have been more proactive in extending labour rights protection to remote workers, particularly since the COVID-19 pandemic. However, countries in the Global South have struggled to do so to the same degree.
It is imperative to establish a legal framework that is applicable worldwide to remote employees who fall under the ‘teleworker’ definition. While there will be numerous problems during this process, primarily because different factors influence the applicability of laws within a country when they are adopted, these challenges can undoubtedly be overcome with an efficient long-term strategy ensuring the rights of remote employees.
Centre for Human Rights (CHR) blog