El teletrabajo, una nueva comprensión del trabajo. El encaje de la deuda de seguridad y salud en una sociedad digital

Abstract

(EN) The 20th century is advancing rapidly and globally towards a scenario of digital transformation. Market globalization, boosted by the development of digital technology and the Internet, has generated changes in work and employment. Organizations need to adapt to the rules of the game for productive activity and reinvent themselves so they can immediately and efficiently meet market demands. The omnipresence of information and communication technologies (ICT), reinforced by widespread connectivity, is disruptively transforming traditional business models and contributing to the increase in service activity. Slowly but surely, the digital transformation is changing people’s life and working habits, based on immediacy and continual availability. In terms of labour law, structural, technological, and organizational changes are driving forward a steady transition from relatively standardized labour organization to diversified, more complex network structures, where work is distributed asymmetrically. Hyperconnectivity is producing a tipping point in what we currently understand as the work environment. The possibility of working, even while commuting, highlights and deepens the difficulties in identifying a single, static workplace. The appearance and subsequent development of teleworking is clearly a manifestation of this transformation and the phenomenon that frames this research. The concept of teleworking seems intuitive, yet it is hard to pin down. Indeed, the original reason behind teleworking, or telecommuting, stemmed from the idea of sustainability, related to rationalizing travel and reducing energy consumption (Nilles et al. 1976). The aim is to avoid commuting, replacing it with ICT use and sending work to the worker instead of the worker travelling to the workplace (Nilles 1988). However, this perspective has broadened as the limitations in earlier technologies have been overcome and costs cut, while telecommunications systems now permit more stable online contact. Distance working, through digital technology, means that work can be moved, although appropriated by the company, while the worker is physically remote. In other words, teleworking involves organizing work more flexibly and permitting the productive process to be restructured around output from the activity, i.e. around demand. As a result, companies are transformed into lighter, more malleable organizations that can adapt strategically to the market, through a dynamic that decentralizes activity. There is little doubt that technological progress and economic trends are influential factors in organizations’ actions and behaviours. This premise represents our initial hypothesis. However, we cannot ignore the fact that companies operate in a specific context, thus their functioning and the changes they adopt interact with legal and political decisions and a regulatory framework. Therefore, the main aim of this research is to study teleworking, the complexity of the concept and the validity of its dimensions, and to understand the transformation it brings about in the concept of work, going on to analyse whether the current regulatory framework is a determining factor in its development. It is safe to say that up to 2019, organizations had adopted an ambivalent position with regard to teleworking. On the one hand, they accepted the integration of freelance work into the value chain, established through a digital platform. However, on the other hand, they were cautious about implementing regular teleworking in the context of labour relations, fearing a loss of control over employees’ work. Given the lack of legal security regarding the obligations and possible liabilities defined by law, organizations are unclear as to the value added by extending teleworking. If one looks at European statistics (Eurostat), which are somewhat limited with regard to teleworking, one notes that, in 2016, a little over 60% of companies provided their employees with remote access to email, work documents and company applications over a fixed connection. In addition, around 30% provided portable devices to over 20% of their employees, permitting mobile internet connection for business purposes. However, according to the report Working anytime, anywhere: the effects on the word of work (Eurofound, 2017), teleworking was mostly an occasional activity in 2015, involving 10% of workers, while regular teleworking from home was only recognized among 3% of workers. The crisis produced by the SARS-COV-2 virus has provided a worldwide demonstration of the value of ICT as an instrument for company resilience. In particular, teleworking has provided the blend for both continuing work and preventing contagion, while organizations’ telecommuting strategy has been geared toward generally restructuring how work is done. This has highlighted the key role of the regulatory framework. In Spain, in March 2020, coinciding with the lockdown imposed by the first wave in the pandemic, over 30% of people in employment were exclusively teleworking. This can be explained by the fact that adaptation was technically feasible and reasonable, and sufficient effort was put into urgent adoption of teleworking. It is probably also explained by the legal flexibility provided by Royal Decree-Law 8/2020 regarding compliance with occupational health and safety requirements and, consequently, company liability in this matter. Whatever the case, either before or after the situation produced by the COVID-19 pandemic, our starting point is that any reflection on the transferability of the current model of labour law to the new technological scenario requires a prior understanding of its historical origins. Basically, two legal instruments are the key to the origins of the protection system in labour law: firstly, the novel appearance of company responsibility for protection from industrial injury and, subsequently, the implementation of work contracts. Our discussion shows how these two areas of law advance more or less in step and, today, provide a defining framework when reflecting on protection mechanisms in work or, more accurately, certain types of work. The proposed research method involves analysing the knowledge base that has simultaneously been built up on occupational health and safety law and labour law, emphasizing the need to connect historical understanding of these processes to current challenges facing our regulatory framework. To do this, the conditions in which both branches or disciplines originated, along with the key reason or legal grounds that justify them, are summarized, while reflecting on their development and applicability. Understanding the current transformation in work and the need to structure it on new and different foundations requires a realization that the world from which labour law emerged, in the early 20th century, has started to disappear. We further add an important critical focus on the current occupational health and safety regulatory framework and, in particular, the Law on occupational health and safety which carries with it a historical protectionist bias, despite its preventative intentions. The duty to protect workers effectively and the diligence required in doing so goes beyond the concept of industrial risk, encouraging formal and inefficient compliance. Furthermore, in the context of disruptive change from an analogical to a digital world, the preventative system reveals the weaknesses in a structure based on assessing what are probably largely unknown risks involved in new situations that cannot be confined within the classic frontiers limiting work to a specific time and place, made yet more intangible by its connection to rapidly changing cognitive demands. Finally, the study aims to contribute to knowledge transfer in the technical areas of occupational health and safety, the field of company liability and, given the complexity of the system, to a greater understanding of the legal basis for workers’ protection, through a graphic synthesis of its history.