(Pham Thanh Truc & Nguyen Huu Phuoc Esq. – Phuoc & Partners)
Telework is being considered as a viable alternative to the traditional work model for many enterprises during the complicated development of the COVID-19 pandemic. In order to adapt to the “new normal”, the organisation for employees to work remotely is increasingly popular and widely applied by enterprises to help maintain stable business operation in the current period.
To ensure human resource management, work productivity and to anticipate for risks that can be faced when implementing the telework model, one of the urgent tasks of enterprises is to formulate an effective telework policy (“Policy”) to apply. It should be noted that an effective Policy is a policy that is both suitable for the specific conditions and characteristics of each enterprise such as operation field, culture, size, level of organisation, and geographical area and also comply with the provisions of law. However, there are currently no guideline for the Policy, from State agencies as well as from departments, authorities or any organisations for reference. This article outlines some important issues to consider when developing the Policy for enterprises.
Group of suitable jobs and conditions for teleworking
This issue is very necessary in two circumstances, firstly, enterprises have both departments that work at offices, factories and also have departments that work remotely; and secondly, enterprises arrange a part of employees to telework to ensure social distancing requirement at the workplaces or to ensure employee health.
There is a fact that teleworking is not suitable for all types of jobs and careers, typically jobs where production materials or information data are located at the headquarters, offices, or factories of the enterprises such as employees working in production lines or bank tellers. Therefore, when formulating the Policy, enterprises should anticipate which group of jobs is suitable for flexible working, avoiding passiveness and confusion when developing the Policy.
For any enterprise that applies both the traditional work model and the telework model at the same time, the Policy should clearly define criteria for considering which employees are eligible for working remotely based on factors such as: workload, ability to work independently, time management skills, sense of responsibility and other criteria that are necessary. For example, some enterprises stipulate that the subject of application is any employee who does not have urgent work to be resolved and must be approved by his or her direct manager before teleworking.
The remote workspace is one of the important contents that enterprises need to be concerned about when formulating the Policy. The location of remote workspace has a great influence on the productivity of employees, along with the risks of information leakage, protection of assets of enterprises and occupational safety.
To resolve the above problems, the Policy must set forth criteria for remote workspaces related to the following three main issues: (i) the privacy of the remote workspaces; (ii) Ensure stable, continuous and secure network connection; and (iii) Confidentiality of storage of documents and equipment provided by the enterprises. Depending on the size of the businesses, the level and the nature of the jobs, enterprises may have stricter requirements for the remote workspaces of particular employees. Encourage employees to choose a fixed remote workspace so that business management can easily contact when there is a need.
However, not all employees have available remote workplaces that meet the standards required by the enterprises, so setting up the remote workplaces may take some renovation costs; using equipment such as electricity costs and telecommunications charges; costs of document printing… Enterprises should determine responsibility for the above costs to avoid misunderstanding between enterprises and employees. The solution for enterprises for the above issues is to support periodically or once as a form of employment benefit for employees to work productively.
However, it is not always appropriate to require employees to meet the above standards of remote workplaces. For example, during the period of social distancing under Directive 16/CT-TTg, teleworkers clearly have only one option, which are to work at their home. If so, the enterprises need to stipulate flexible and reasonable criteria for remote workplaces, or it can only stipulate that the employees must ensure the safety and confidentiality of information and documents as well as the status of network connection in order to telework effectively.
Equipment and communication channels
Enterprises organise employees to telework means that almost communication and exchange of enterprises must be through telecommunications technology platforms. Faced with the alarming situation of leaking business secrets and stealing information in cyberspace, enterprises should spend reasonable costs to invest in softwares, applications and servers to serve the secure exchange of information, prevent network attacks, ensure smooth and uninterrupted access to data affecting the general work, at the same time, promulgate regulations to ensure the safety of information confidentiality when employees work remotely.
The Policy will stipulate the responsibility of the enterprises to provide necessary equipment, while obligation of the employee is to maintain and use the provided equipment. Accordingly, the Policy will clearly stipulate the equipment that employees are provided (including items, tools, hardware and software), limit the liability of enterprises for costs incurred when employees use such equipment such as electricity costs and telecommunications charges. Depending on the needs and sizes, enterprises can have a remote technology support department/division in charge of maintaining and repairing technical problems of equipment.
Besides, there are regulations on the obligations of employees when using and maintaining equipments provided by enterprises. In order to ensure that the equipment are used for the right purposes, to limit the leakage of confidential information and datas, employees are only allowed to use the equipment for work related purposes. The Policy must also clearly stipulate the obligations of employees in the safe and reasonable preservation and maintenance of the equipment. Employees must compensate and can be disciplined in accordance with the enterprises’ labour rules and Vietnamese laws for any damage, loss or violation of the Policy.
Enterprises should also stipulate the communication channels that employees are allowed to use when exchanging information and documents about work or when organising online meetings in the Policy to facilitate management and supervision of employees. In addition, enterprises also need to prepare for the cases that employees accidentally download files or applications on the cyberspace that contain malicious codes that cause risks to enterprises’ security of data and information. To limit such kind of risks, enterprises need to request employees not to download any applications, files or access public network connections without the consent of their direct management. Moreover, depending on the characteristics of each operation field, enterprises can promulgate other reasonable regulations and make instructions for employees specified in the Policy to ensure smooth communication and information security.
Code of conduct for teleworker and performance evaluation
Different from working in offices, factories or at fixed workplaces arranged by enterprises, telework model is considered to create more comfort and freedom for employees because there is no direct supervision from their direct management. However, comfortable psychology can cause distraction and lack of professionalism at work, so that the issue that enterprises concern is the quality and efficiency of work when employees work remotely. In this regard, enterprises need to pay attention to two major points:
- Telework policy should include provision on the Code of Conduct for teleworkers on the following issues: (i) Manner, clothes when teleworking, when meeting online or meeting in person with colleagues, partners or customers; (ii) Keep in touch and quickly respond to any message, email, telephone call from colleagues, partners or customers; and (iii) Abuse of telework policy is strictly prohibited and sanctioned; and
- The telework policy needs to clearly state that the performance evaluation results of telework are assessed the same as when employees work at the workplaces of the enterprises and will also be used to assess the work completion, review salary, bonus payment, promotion or consider unilaterally terminating labour contracts if the employees repeatedly fail to perform their assigned The assessment of work completion should be compatible with the internal regulations of the enterprises on performance evaluation as analysed below.
Compatibility of the Policy with the Acknowledgment Internal Regulations and the provisions of law.
The compatibility of the Policy with labour contracts, collective labour agreement, and the current internal regulations of the enterprises such as internal labour regulations, wage scales, wage tables, and bonus regulations (generally referred to as “Acknowledgment Internal Regulations”) and relevant laws are important issues that enterprises should keep in mind when promulgating the Policy. The laws currently do not provide for legal effect of the Policy, so the Policy can be only considered as an internal regulation of the enterprises derived from the right of enterprises to manage, administer and supervise labourers in specific situations (such as social distancing) and the Policy content must not contravene the labour contracts, the collective labour agreements, the Acknowledgment Internal Regulations and relevant laws. Therefore, in principle, the Policy provisions must not narrow or limit the rights and interests of employees as compared to the contents specified in the aforementioned documents as well as prescribed by relevant laws and if there is any conflict, it will be difficult for the provisions of the Policy to prevail.
Thus, when promulgating the Policy, enterprises need to review the provisions in the Policy to avoid conflicts with the aforementioned documents. At the same time, to ensure the synchronisation of documents, enterprises need to conduct collective bargaining to amend and supplement the labour contracts, collective labour agreements and amend the Acknowledgment Internal Regulations, in order to allow enterprises to issue and implement the Policy in case of necessity, because most enterprises have not yet foreseen this problem and do not have regulations on telework in the aforementioned documents. Therefore, in the context that the prolonged Covid-19 epidemic as well as to anticipate many other cases that may incur in the future, enterprises should amend and supplement as guided above, even if this process may be time consuming because it is not simple to add the telework permitting mechanism to the entire labour contract, collective labour agreement and Acknowledgment Internal Regulations.
The process of formulating and promulgating the Policy
Different from the Acknowledgment Internal Regulations, the labour law does not regulate enterprises to consult with employee collective or representative organisation of employees at the grassroot level before promulgating the Policy. However, the labour law allows employees provide their comments on the Policy, because this is the enterprises’ regulations related to the rights, obligations and interests of employees. Therefore, in order to increase the convinction and effectiveness of the Policy’s compliance, although according to the law, employees can only give opinion in the form of collecting opinion directly or through representative organisations of employees at the grassroots level, enterprises should have a direct discussion with employees to show that the enterprises have fully implemented the democratic regulations in the process of promulgating the Policy and if there is a dispute regarding the Policy, enterprises also have a solid basis to prove that the enterprises issued and applied the Policy in accordance with the applicable regulations.
Complication on occupational accident insurance when teleworking
“Is teleworker covered by occupational accident insurance?” This is a big question in the context of telework model being more popular as a solution to adapt to the “new normal”. According to the labour law, employees are entitled to occupational accident insurance when they suffer an occupational accident that causes a working capacity decrease of 5% or more in any of the following cases: (i) At the workplaces and during the working time, even if they do necessary daily activities at the workplaces or during the working time as prescribed in the Labour Code and internal regulations of the enterprises, including break time, mid-shift meal, in-kind meal, menstrual hygiene, bathing, breastfeeding or personal hygiene; (ii) Outside the workplaces or beyond working time when the employees work assigned by their employers or the persons authorised by the employers; and (iii) On the route between home and work within a reasonable period of time and route.
However, according to the labour law, a workplace is any place where an employee actually works as agreed or assigned by the enterprise. Therefore, if enterprises assign employees to work from home, this can be considered a “workplace”. Therefore, if an employee has an accident during his or her working time and at a remote workspace, the enterprise may face the risk of having to pay all expenses related to the occupational accident for the employee. To reduce risks, enterprises should stipulate rules on occupational safety and require employees to comply with the Policy and confirm that the enterprises are not responsible if employees violate those safety regulations.
The complicated developments of the current COVID-19 epidemic force enterprises to be flexible in arranging personnel to both fight the epidemic and ensure uninterrupted business activities. However, the law has not yet provided timely guidance to the legal issues arising from this new telework model, so the development of internal regulations of the enterprises to adjust and guide the implementation of the telework model for employees becomes even more urgent. Enterprises need to be careful and predictable when drafting the Policy so that this telework model working is for the right purpose, effective and practical.