Tax Advisory: Spain publishes the Draft Law on remote work

The impact of COVID-19 has caused the development of tax advice for expatriates

After the economic and social impact of COVID-19 in Spain, the Government has decided to publish the Draft Law on remote work. The purpose of this regulation is the regulation of worker rights and the possibility of occasional remote work at the request of the company.

Among the rights and obligations that are regulated in the new legislation, are:

  • Rights related to professional career.
  • Rights of economic content.
  • Rights with repercussions on working time.
  • Rights related to the prevention of occupational risks.
  • Rights related to the use of digital media.
  • Collective rights, fixing aspects of interest regarding work and rest times.
  • Control of work activity.
  • The right to privacy.
  • Remuneration and financial compensation and preventive obligations.

It should be noted that the new regulations modify art. 13 of the Workers' Statute, being somewhat more similar to the one established in the European Framework Agreement on telework in 2002. However, this law will not qualify telework, but remote work:

  • Remote work: that work that is provided in the domicile of the working person or in the place freely chosen by him, during all his day or part of it, not occasionally.
  • Teleworking: that work that is carried out by means of the exclusive or prevalent use of computer, telematic and telecommunication means and systems.
  • On-site work: that work that is provided in the workplace or in the place determined by the company.
  • Occasional remote work: that work that is provided in the domicile of the working person or in the place freely chosen by him, during all his day or part of it, occasionally.

Regarding the right to equality, the following criteria are established:

  • The right to equal treatment is recognized between people who work remotely and those who do it in person.
  • It is established that there should be no unjustified differences between the remote workers themselves or the obligation to guarantee that the persons who carry out remote work can access and exercise the rights of conciliation and co-responsibility with the same scope as the persons who work in person.
  • A right to equality is established in relation to occasional distance work, because the persons who carry it out have the same rights established for persons who carry out non-occasional work.

On the other hand, there are the rights of economic content and compensation of expenses, contribution of means or work tools, among which stand out:

  • The contribution of the necessary means for the labor activity, according to what is established in the inventory included in the distance work agreement, is the entire responsibility of the company.
  • Right of the person working to be compensated for any expense, direct or indirect, that may be caused by the development of remote work.
  • Workers have the right to be compensated for all the expenses they incur. If this provision does not cover said total compensation, they will have the right to claim the difference.
  • A maximum period of one month will be established for the signing of the distance work agreement in the event of labor relations that were previously provided in accordance with said modality.

In the case of schedules and the obligation to register, the following aspects are included:

  • It is established that the obligation to register hours must faithfully reflect the workday.
  • Time flexibility is configured in the law as a feature that is inherently inherent to the remote worker.
  • It is established that the obligation to register hours must faithfully reflect the workday.

In addition, rights related to professional career and the use of digital media are established:

  • The standard develops the right to training and professional promotion.
  • The law expressly guarantees the right to privacy of the worker and establishes that the control mechanisms that may exist must be suitable, necessary and proportionate.

However, the regulations incorporate a series of articles, influenced by the health crisis of COVID-19:

  • The provisions of article 5 of Royal Decree-Law 8/2020 of March 17th are incorporated into its articles..
  • The possibility is established of, in those cases where it is required, the presence of the working person for the care and care of certain family members.
  • The limit of 60% of the ordinary working day is established, without the norm specifying the reference parameter so, in principle, it corresponds to the worker.
  • A specific procedure is created that grants agility and speed to judicial claims.

Finally, all regulatory changes will be reflected in a new wording of arts. 13, 23.1 a) and 37.8 ET; 7.1 LISOS. A special judicial procedure will also be carried out, through the introduction of a new article 138 bis, to Law 36/2011, of October 10th.

B Law & Tax
International Tax & Legal Advisors.

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Etiquetas: COVID-19, expatriate tax advice, Labour law, Draft Spain