Coronavirus: exploitation of tele working in Algeria
Based on the urgent Decrees issued to fight the spreading of the COVID-19 in Algeria, the employers should ease the switch to smart working where possible (tele working), at least for a part of the employees.
Now, the employers are facing another challenge because even if putting their best efforts to encourage smart working, there is not any specific legislative text dealing with its regulation and implementation.
Especially because of the actual state of flux, tele working could affect the rights and duties of the contracting parties.
How to adopt an agreement for tele working in absence of any specific regulation ?
Tele working seems to be the preferable choice in order to assure the continuity of services and to preserve the employees’ wages.
Unlikely « work from home », which is considered as a special regime of work and it is duly regulated by the law, tele working is not governed by the law.
In fact, even if the two regimes are very close, they cannot be assimilated.
Now, we can find some decisions concerning the « change of the place of work », such as the Decision of the Supreme Court dated on February, 2, 2007, stating that “the employer can amend the place for the performance of the job of the employees, provided that the employees will keep enjoying all of their rights”.
In other words, the law does not forbid tele working, but it requires to be implemented with an agreement in order to mitigate risks and liabilities.
Which are the procedures to be performed in order to adopt tele working?
In order to adopt tele working, both employer and employees must give their respective consent, in compliance with art. 106 of the civil code: “The contract is the law of the contracting parties. It cannot be terminated or modified, unless under their common consent”.
In fact, even if we are in presence of several Decisions of the Supreme Court granting the employer with the unilateral power to modify the place of performance of work, we highly suggest trying to reach an agreement with the employees on that regard.
In addition, it would be preferable to clearly set the terms and conditions of the adoption and exploitation of tele working within the Company.
Here, it would be possible to obtain the desired result in different ways, for example through an amendment of each labor contract, a Charter or a collective agreement.
On that regard, it is worth to mention that a consultation with the Health and Safety Committee (comité d’hygiène et de sécurité) or with the Company Committee (comité d’entreprise) is deemed to be mandatory before proceeding with the adoption of tele working.
Which are the main risks that could be mitigated through the execution of an agreement for teleworking?
Even if the labor contracts will be executed outside of the usual working site, the Parties will enjoy the same rights, in compliance with the general principle of acquired rights.
In the practice, the employees will continue enjoying the same coverage for social security and health insurance.
For this reason, the agreement of tele working should regulate also the qualification of work accident and its compensation.
It is worth to mention that even the duties of employer and employees will stay the same.
The employees must comply with the new provisions included in the agreement, such as work place and duration of teleworking; the duty of coordination and information to the Company; confidentiality clause.
The employer, on the other hand, should keep the payments of wages going and it should provide the employees with the tools and goods necessary to the continuity of the services.
Finally, it is worth to remind that any sensitive equipment exploited by the employees at home, such as VPN software or some firewalls, is still subject to a prior authorization that the Company should have obtained.
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