28.09.2023

"PLACE OF WORK" AND "WORKPLACE " AND OTHER ISSUES WHEN WORKING REMOTELY

Comment from the specialist

To date, changes have been proposed to amend and supplement the Labor Code, which aim at greater flexibility and security in remote work, including in relation to the organization of health and safety working conditions, reporting of work and control of working hours.

The proposed changes became the subject of increased public interest and media discussion. The main emphasis in this polemic was placed on the texts that supplement the regulations regarding the definition of "place of work" and "workplace" in remote work or so-called remote work. Dr. Todor Kapitanov, an expert in labor law, explains the difference between the two concepts.

By agreeing in the employment contract the specific place of work from which the remote work will be carried out, certainty is created in the relations between the parties. Thus, neither party will have the right to unilaterally change the agreed place of remote work. This provides an opportunity for the employer to guarantee safe and healthy working conditions and to control the performance of the work.

What does this mean in practice and do we understand that 'place of work' and 'workplace' are two different concepts in employment law?

According to the current legislation, "place of work" is "the headquarters of the enterprise with which the employment contract was concluded, unless otherwise agreed or does not follow from the nature of the work".

Specifying the "place of work" is a mandatory requirement and part of the minimum content of any employment contract. This fundamental position is not changed by the proposed amendment to the norms, according to which the place of remote work is determined with the individual employment contract, when it is different from the employer's headquarters.

Determining the place of work, at least in terms of whether it is in the territory of the Republic of Bulgaria or outside it, has an important practical meaning, especially if the work is carried out from abroad and for long periods of time.

It is the proposal to agree on the place of work, if it is different from the employer's headquarters, which means in practice the freedom to agree on a different place from which to carry out the remote work. On the other hand, if the remote work takes place on the territory of the Republic of Bulgaria, with the headquarters of the company being in the city of Sofia, and the remote work will predominantly be carried out, for example, from an apartment or villa in the city of Varna, this must be recorded in the individual employment contract.

This change does not limit either the employee or the employer. On the contrary, it gives greater freedom for both parties and at the same time guarantees stability for the employer where he can look for his worker and how to demand from him the correct operation of the equipment and the performance of the work duties from this place.

Another is the content of the concept of "workplace" and it should not be confused with the concept of "place of work" in teleworking. The workplace according to the current legislation is "a room, workshop, room, location of a machine, facility or other similar territorially determined place in the enterprise, where the worker or employee, on the instructions of the employer, performs his work in fulfillment of the obligations under the employment relationship, as well as a place, determined by a user enterprise. In the case of home work and remote work, the workplace is the worker's or employee's home or any other premises of his choice outside the enterprise."

With the new proposal in the Labor Code, a change is also made to the term "workplace when working remotely" - it will be understood not as the entire home of the worker, but a certain "place in a room in the home of the worker or employee or in another room according to him choice outside the establishment where the work is carried out'.

In other words, if the worker has chosen to work from his living room at home, this will be the workplace that must be technically secured and secured, so that the employer or the Labor Inspectorate can carry out inspections in this room if necessary.

In this way, the ambiguity will also disappear if an accident happens at home while we are working remotely, whether it will be work-related or domestic.

New requirements for information systems when working remotely

Through the planned change to the regulation regarding remote work in the Labor Code in Bulgaria, the requirements for the use of information systems by the employer for assigning and reporting the work will also be regulated, including and regarding the implemented systems for algorithmic management of work processes.

The implementation of information systems for algorithmic management (and so-called artificial intelligence) raises concerns about excessive control by employers and limiting human intervention in essential decisions that affect the labor rights of workers and employees.

What are the planned changes in the law and in what way would they guarantee the observance of the rights and interests of workers, specifically those of them who will work remotely under the new conditions?

In order to ensure the rights of workers and employees when using automated management systems, an obligation is provided for the employer to provide employees with information about the data collected and processed in connection with the work.

In this way, workers and employees will be familiar with the established control mechanisms and the volume of information that their employer collects and processes, as well as the way of making automated decisions related to the assignment, reporting and control of work. The necessary information should be provided to employees in writing.

The right of the worker or employee to request a review of the automated decisions made by the algorithmic management system that affect his rights is also regulated. When a request for reconsideration is filed, the employer or an official designated by the employer will have an obligation to review the decision of the algorithmic management system and notify the worker or employee of the final decision. In this way, the obligation of human control over all important automated decisions affecting the rights of workers is regulated.

Information and communication technologies used for official purposes are characterized by greater flexibility in terms of time, place and way of performing work. Carrying out work using modern technology allows employers to make contact with workers at any time. This may lead to a violation of statutory rest periods for workers.

Modern means of communication, on the other hand, should be used in a way that guarantees the combination of professional and personal life and provides an opportunity for workers to spend their free time to the fullest with their families. The development of market relations and the membership of Bulgaria in the European Union are related to the closer integration of national enterprises in the common internal market, including the participation in the chains of suppliers and contractors.

The freedom to provide services includes the right of enterprises to provide services in another Member State, for which purpose they temporarily post their workers. The legislation of the European Union regulates the main requirements regarding the terms and conditions for the posting of workers for temporary work for the purpose of providing services in another Member State other than the one in which they normally work.