Professional expenses, volunteering or disconnection ..., the national inter-professional agreement on teleworking is akin to a “
guide of good practices
” for the company, bringing “
nothing new
” to the employee, say legal experts of work, for whom the time for agreements setting binding rules is over.
Announced on November 26 by Medef, this agreement must be officially initialed by December 23 by unions (CFDT, FO, CFE-CGC, CFTC, without the CGT) and employers (U2P, CPME, Medef), before be filed with the General Directorate of Labor, then enter into force.
Read also: The fatigue of private office workers: teleworking is (a bit) hell
"
This national interprofessional agreement (ANI) does not bring anything new,
" said Deborah David, social law lawyer at De Gaulle Fleurance (employer side).
Just this text of about twenty pages gives "
a user manual for the smallest companies less familiar with teleworking
".
“
My clients will be very happy with this agreement,
” says Julia Gori, her colleague at Simmons & Simmons.
It “
gives a grid of setting up, points of attention, tracks but it does not impose anything.
And that's good for the employer
”.
A "
soft
"
agreement
Same analysis on the side of lawyers defending employees.
"
This is the first time that I see such a soft agreement, which fixes nothing, with only recommendations or reminders of the obligations of each other
", regrets Bénédicte Rollin, lawyer and head of the social commission of the Union of lawyers of France.
Eligibility of teleworking positions, volunteering, reversibility (return of the employee to his workplace), precise provisions on teleworking in times of crisis (epidemic, natural disasters ...), right to disconnect, private life ... "
nothing is binding in this hollow ANI
", estimates Emmanuel Dockès, professor of social law at Lyon 2. However, advances Virginie Devos, of the August Debouzy cabinet (employer), if the disputes around telework have so far been"
rare
”, they are likely to develop in the future, with the explosion of this form of work.
But this ANI will not serve as a benchmark to resolve them, lawyers say.
To read also: Costs and teleworking: when it's blurry
Among the problems in view, they point in particular to the assumption of expenses or the working time.
Virginie Devos also anticipates litigation around the “
voluntary nature of teleworking
”, when companies will consider imposing it indefinitely.
Or even the “
intrusion into private life, with digital monitoring and traceability tools, put in place on the employers' side because the trust is not there
”.
Regarding costs, lawyers expect complaints about restaurant vouchers, compensation for occupancy of personal home or the establishment of a package when home becomes the usual place of work ... So many problems to which the ANI does not respond.
Hollow ANIs
An ANI applies at national level to the employer who is a member of a signatory employers' union (Medef, CPME and U2P).
It is traditionally fully or partially transposed into law, which is not provided for in this case.
In the future, this kind of agreement is likely to closely resemble the one on teleworking, think the legal experts: without binding rules at the national level, referring to negotiations in companies.
“
Today, we cannot adopt prescriptive rules for everyone, very small businesses or large companies, it does not make sense,
explains Deborah David
: we are in the era of soft law (soft law, Editor's note) and the overhaul of the Labor Code in 2016 and 2017 demonstrates this, making it possible to derogate by company agreement from the legal provisions of branches or the Labor Code
”.
Why sign such agreements?
"
To legitimize the social partners, defend collective bargaining in itself,
" replies Emmanuel Dockès, recalling that the government threatened to take up the subject, for lack of agreement.
“
Nostalgic
”, he points to previous reference ANIs, in particular on vocational training (1991, 2003), “
modernization of the labor market
” (2008) or even that on “job
security
” (2013), all transposed into law.
"
The legislator then threatened to legislate in a direction not entirely favorable to the employer, who preferred to negotiate himself rather than submit to a law,
" he explains.
Another “
hollow
”
ANI
has just been signed, believes the professor: the one on occupational health.
