Smart work: The Law and the new trends in the labour market

New technologies are changing the way we see and interact with the world. The economy and the labour market are not immune to this revolution. Smart work is one of the great trends in this sector. Dália Cardadeiro, lawyer and partner of BAS writes on this topic.

We are witnessing an intense debate concerning human resources and new trends in the labour market in which it’s important to participate and intervene. The evolution of the economy forces us to do so, with the introduction of topics such as robotization in the employment world, privacy and protection of personal data, schedules flexibility, geographical mobility of workers, smart work, among others. It’s important to point out that the protection of personal data has been the subject of great attention by our companies in view of the full enforcement of Regulation 2016/679 of the European Parliament and of the European Council of 27/04/2016 (which will happen at 25 of May 2018, which implied a major effort by the Member States to adapt the institutions and legislation towards its compliance).

Our present legal and labour framework concerning private and public employment, which in many institutions, according to their legal nature, coexist side-by-side, has been making these issues even more challenging in terms of identifying diagnosis and searching for solutions

Equally pertinent to our national reality, we have been observing the need to deal with issues such as seasonal employment in tourism and the hiring of foreign citizens, which is increasing in view of factors such as emigration that, in our country, is focused heavily on sectors such as agriculture, where the enforcement of the law is frequently challenged.

New trends and the evolution of the Law

The debate I’m talking about, concerning human resources and new trends in the labour market, has been growing in intensity because the evolution, or, if we are to understand it separately, the mutation, of the economic-business reality on a global scale is taking place at an enormous speed and dynamic without the legal systems being able to adapt or evolve at the same pace, so, it is also important to carry out intensive work at a legislative and collective contracting level in this area.

Until this evolution in legislation and collective contracting is verified, it’s in the context of the companies themselves that, in light of the available legal mechanisms, the best solutions will be found in each case.

BAS’s Labour Department has been focusing its consultancy at a preventive and follow-up level, and also in training. This work is being developed with client companies, individual workers who contact us and workers and employers associations in areas such as personal data protection, privacy in the workplace, contractual models and flexibility of work hours.

Smart working, a national trend?

The trend is global. The scale is not at a European level, it’s worldwide. It’s very interesting to see the evolution of the adoption of this contractual reality in terms of recruitment, hiring and contractual vicissitudes associated with the geographical mobility of workers and of the companies themselves.

Strictly speaking, smart working is an evolution of teleworking, but the two should not be confused since the first doesn’t have a fixed and established work place (almost always the home, in the case of teleworking). The smart working model does not imply an established workplace and the worker can perform his / her professional activity, for example, partly at the company’s premises and another part at home.

The objective of this flexible instrument is the increase in the efficiency and profitability of the work that this model allows in an increasingly competitive labour market. It should be noted that in this way we will have a worker hired by a company with offices in Lisbon, working in Porto or even in Singapore or another location, without this implying that a geographical mobility or other labour vicissitude is occurring.

I am sure that this labour context will also contribute to a faster and/or diversified evolution in the professional career of smart workers, which may be increasingly linked to the new worker model from the ‘Millennials’ generation and/or the win-win culture where remuneration is a relevant aspect but not the exclusive aspect of their career development and professional development, and for whom the flexibility of work that promotes a better balance between professional and personal life, namely the social benefits and career plan, are key issues.

Employees’’ and employers’ rights

This regime poses great challenges, especially for companies that, without having this contractual culture, are nowadays adapting to this new reality as it becomes essential to their business model and employability reality.

The questions here are, first of all, in terms of working times, their respective registration and compliance, remuneration incentives, as well as the use of labour instruments, privacy and data protection, work accidents, among other issues

We have a recent legislative example and, like others, we must follow its implementation and evolution. This is the case of the Smart Working Act published in Italy on 14/07/2017.

Our collaboration with clients, in this area, focuses mainly on promoting the preparation and adoption of work contracts and/or individual agreements with employees where all these matters are duly regulated, as well as through the adoption of procedural policies and of internal regulation for that purpose

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