As the ILO views it, the pandemic, initiated an “unprecedented experiment in working from home”, predicting that results of the “great working from home experiment” would unfold in the coming years. Experts suggest that “the virus has broken through cultural and technological barriers that presented remote work in the past”, making remote work a significant part of working life, post-pandemic.

Given that non-traditional work modes are the “future of work”, we should consider regulatory frameworks on this, across countries. While not all aspects of remote, non-traditional working are addressable by legislation, developing a coherent regulatory framework on remote work is crucial, especially for India, where 96% of organizations rolled out WFH since the national lockdown last year, and to streamline WFH for certain lines of work most affected.

With increased acceptance necessitated by the national lockdown, WFH continues to persist. Co-incidentally, 2020 also saw the four long-overdue Labour Codes being enacted. While the Codes deal with various issues, they lack the regulatory infrastructure required to address WFH, which is likely to take greater relevance in future. These distinct issues therefore, require fresh deliberation through the WFH lens.

Position under the Labour Codes

Some major definitional and conceptual issues arising under the Labour Codes, vis-à-vis WFH, are discussed herein to emphasize the need to accommodate WFH in Indian labour legislation.

draft Model Standing Orders for Service Sector, 2020 (draft Model Standing Orders): The sole mention of WFH in the Labour Codes is in the draft Model Standing Orders issued vis-à-vis the Industrial Relations Code, 2020. These guide employers at industrial establishments having over 300 workers, on formulating rules of conduct for workers. Accordingly, an employer may allow employees to WFH, subject to conditions of appointment or agreement between the two parties, for a pre-determined period. This however, barely qualifies as guidance for employers to develop a robust WFH framework for their workers.

Alongside, legislators must heed concerns of certain sectors regarding compliance with a WFH regulatory framework. WFH rules may increase compliance burdens on the IT sector, which enjoyed informally the flexibility of WFH pre-draft Model Standing Orders. Further, complications may multiply when the draft Model Standing Orders interact with state rules and orders. The introduction of an omnibus WFH model, without sufficient oversight, therefore, is unreasonable.

Occupational Safety, Health and Working Conditions Code, 2020 (OSH Code): OSH Code defines “Establishment” as a place employing workers, connoting a physical space where work takes place. Any other place is not an establishment; hence questions of occupational safety and health of workers working outside a physical establishment arise.

The definition of “Establishment” is also not as inclusive as that of “workplace” under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), which includes even transportation used for work, as workplace. Though different in its aims, the POSH Act establishes workplace as a fluid concept. With WFH becoming the new normal, the concept of “Establishment” may need broadening, to sufficiently accommodate occupational safety and health of workers working from home.

The ILO attributes responsibility to governments to ensure employers’ compliance with their duty of care and their obligation to provide, as far as reasonably practicable, a safe working environment without risks to physical and mental health. This includes assessing, controlling and mitigating risks in locations beyond the normal workplace, including the worker’s home. OSH Code may therefore address WFH-induced health and safety issues, in light of the pandemic.

Code on Social Security, 2020 (CSS): While CSS defines “home-based work”, concepts like “remote work”, “telework”, “work at home” and “information and communications technology” are absent. International definitions of “remote work” and “telework” are not established, however, creating a definitive legal understanding of these terms, in the Indian context is vital.

The ILO defines “telework” as a subcategory of “remote work”, even though both are carried out outside the default workplace. Further, “Work at home”, while being independent of the default workplace, may overlap with “home-based work” defined under CSS, wherein work is carried out at the worker’s home. Then, the concept of “wage worker” under CSS includes “home-based worker”, both of which are subsets of “unorganized worker” under CSS. Such definitional overlaps are undesirable, more so because different social security schemes are available under CSS, depending on the particular category of worker.

All the Labour Codes presuppose physical presence at the workplace, a point we highlight vis-à-vis “Establishment” under OSH Code. A similar challenge arises regarding providing crèche facilities under CSS, in a WFH context. While the Code and draft Rules envisage provision of crèche facilities physically, no guidance exists on how the same may translate to a virtual context. A suggestion may be inserting provisions on reimbursing nursing/child-care facilities instead.

Code on Wages, 2019 (CoW): Reportedly, stakeholder discussions on revising WFH workers’ salaries have been underway since WFH’s formalization. Accordingly, decision to cut pay of employees moving to smaller towns from Tier-I cities is being contemplated. Further, companies may do away with transport allowances, while reimbursing for WFH infrastructure. The 4.3 million strong IT/ITeS sector, which more-or-less shifted to WFH in March 2020, is expected to be worst-hit by this. While it is important to consider cost-related changes companies have experienced, effects of WFH are ambiguous and may be heterogeneous across individuals depending on underlying motives. Several factors, including human factors, require evaluation to remodel wages and allowances of workers working from home.

Internationally accepted WFH practices

Understanding international practices associated with WFH may help gauge issues which a potential Indian regulatory framework may have to grapple with. Accordingly, we discuss the concepts of “teleworking” and “flexible working arrangements”.

Teleworking

The internationally accepted term for the nature of WFH prevalent in India since March 2020, i.e., “telework” is absent from guidelines or notifications etc. issued by the Government regarding WFH. Telework is broadly defined as the use of ICTs like smartphones, tablets and laptops/desktops, to perform work beyond the employer’s premises. One of its earliest legal references appears in Californian law from 1995 framed to encourage “telecommuting”, i.e., substituting commute to work with computers and telecommunication technology, by state employees. The EU, too, in 2002 introduced a Framework Agreement on Telework delineating a general framework balancing employer and employee interests.

Teleworking has been recognised vide ILO Convention No. 177 on “home-work” aimed at promoting equal treatment between home-workers and other workers. Teleworking as a permanent arrangement, whether full-time or part-time—and not alternating with office-based work was covered under “home-work” set out in the Convention. India, however, has not ratified this Convention.

The Telework discourse has focused on three generations of telework, namely, the stationary home-office utilizing desktops and telephones (1970s), the mobile office utilizing lighter wireless devices like laptops, mobile phones (2000s) and the virtual office, by virtue of which office is accessible from anywhere, at any time due to latest ICTs (until 2020). However, to respond to the challenges resulting from the hurried shift to teleworking, the post-pandemic discourse on telework, commands a paradigm shift. Some key challenges, concern health & mental well-being, work-life balance, technology, data protection & security, skill updation, and productivity.

Finally, WFH enables an ecosystem wherein, employees may be hired to telework from the world-over. While this monumental change in work-culture is owed to technological advancement, the regulatory framework to adopt this change requires development.

Flexible working arrangements

Flexible working arrangements (FWAs) have their genesis in “decent work”, or work balancing “people’s aspirations regarding their work and current work situations”. They afford flexibility in conduct of work, including flexibility in work-hour schedules, number of hours worked, and, place of work. Therefore, FWAs exist across a wide spectrum, and there can be multiple permutations of it depending on the specific needs of employers and employees.

Introducing flexible workplace practices (of which FWAs are part), can not only assist employer needs, but also enhance work-life balance for employees. Additionally, flexibility incentivizes the working population’s under-represented individuals to manage work with other responsibilities. In India, for instance, with labour-force participation rate for women (between ages 15-64, per ILO) at 22%, unsurprisingly women have responded positively to WFH, since the pandemic. Further, surveys of young Indians reveal that FWAs are favoured by most. It is, therefore, only logical that FWAs will constitute a critical element of how labour regulation in India responds to challenges of the pandemic.

This issue merits attention of policymakers also because the newly enacted Labour Codes or the draft Model Standing Orders do not address this largely. While CSS allows women having availed maternity benefits to work from home on certain conditions, the draft Model Standing Orders, broadly provide for WFH, for employees, and flexible working hours for IT sector employees.

Comparative approaches to regulating WFH

We discuss briefly, the experiences Finland, Spain, the United Kingdom and Singapore, and their attempts at legislating around WFH. We focus on Spain’s recent remote work law, and examples of flexible working laws in other nations.

Spain: Spain legislated on remote work in September 2020. Remote work must be voluntary and reversible, and formalized in a written agreement without prejudice to general employment legislation or existing collective bargaining agreements. The law clarifies whom it applies to, i.e., those under an employment contract, and who have rendered “remote work” for a minimum period of three months, for at least 30% of an employee’s working day, or an equivalent percentage based on the contract. It also differentiates between “telework” and “work from home”. Companies are to provide resources, equipment and consumables necessary to perform and maintain work remotely. Further, employees have a right to payment and compensation for expenses on equipment, right to privacy and data protection, and a right to digital disconnection, amongst others. At the same time, the law empowers employers to ensure that remote employees fulfil their duties well.

Finland: Finland has provided flexible working opportunities for years. This is partly because of legislation, allowing employees the right to adjust their working hours for maximum flexibility, since mid-1990s. The Finnish Working Time Act, 2019 was recently amended to introduce key changes towards creating adaptive working arrangements on flexible work hours, flexible working arrangements and the introduction of ‘working time accounts’. The Act has several features affording flexibility. Employers and employees may agree to flexible working hour arrangements, subject to regular working time not exceeding 40 hours and adjustment of excess hours worked. The Act also permits individual flexible work arrangements where employees decide on placement and performance at least half of the working time, setting out a number of aspects such an arrangement must cover (such as days on which working hours may be allocated, weekly rest periods and fixed working hours). The Act enables agreements on working time accounts, where working hours, earned time-off and monetary benefits can be exchanged for time off. Agreements on working time accounts must cover certain elements.

The United Kingdom: FWAs were allowed via a process of proposal and negotiation in 2002, to assist employees with care-taking responsibilities in requesting FWAs. The UK’s approach to flexible work is predicated on three main pillars viz. qualifying employees proposing changes in relation to hours, time and location of work; an employer’s duty to consider such application in a “reasonable manner” with refusal only on pre-specified grounds (such as additional costs and inability to re-organise work amongst existing employees); and escalation to employment tribunals by employees, in limited circumstances. The UK’s approach is considered “light touch regulation”, and is based on a foundation of dialogue and negotiation between employers and employees. Australia and New Zealand have also adopted similar legislation.

The European Union: The European Union (EU) has a “Work-Life Balance Directive” adopted in 2019, which provides FWAs for parents and carers.

Singapore: An interesting alternative to the rights-based approach to FWAs in the UK, lies in Singapore. Through a set of voluntary “Tripartite Standard on Flexible Work Arrangements” formulated in consultation with multiple stakeholders, employers can adopt practices that assist employees better manage work-life needs, while enhancing productivity. Such employers are employers of choice, and can use a logo-mark in recruitment and marketing.

Conclusion

The onset of CoVID-19 and the national lockdown in March 2020, changed how millions of Indians work. WFH is now a reality for millions, having altered how we spend our working hours and lives, hereon.

Alongside, the passage of three Labour Codes has been a watershed moment in developing labour regulation in India. While these Codes do not dedicatedly deal with WFH, a beginning has been made through the draft Model Standing Orders. We demonstrate how the Codes do not completely address conceptual issues regarding WFH, and how telework and flexible working arrangements have gained ground globally. Therefore, these initial steps require supplementing with a coherent and comprehensive regulatory framework.

We discuss how WFH legislation has developed elsewhere, offering guidance on how our own framework may shape up. For example, Singapore’s approach towards FWAs emphasizes the importance of encouraging employers to support and commit to progressive working conditions through consensus, which is worth exploring, as we seek to create progressive working conditions in the aftermath of the pandemic. As our regulatory framework on WFH evolves, addressing these issues could help develop an India-appropriate regulatory framework that meets needs of both employees and employers in the most balanced manner.

This article was originally published in The Times of India on 18 March 2021 Co-written by: Soumya Jha, Research Fellow; Ulka Bhattacharyya, Research Fellow. Click here for original article

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