Towards harmonized telework regulations?

Following the public debate in January on the petition “2 days of telework per week for all”, which had gathered no less than 13,892 valid signatures, the OGBL was invited to a hearing on February 9th in the context of a meeting of the “Telework” subcommittee of the Chamber of Deputies. The OGBL, represented by Frédéric Krier and Jean-Luc De Matteis, took the opportunity to present its views on the various aspects of telework.

It is certain that the use of telework will continue to be much more widespread than before the health crisis. In many sectors, the possibility of teleworking is seen as a significant advantage, especially in view of the rush hour traffic jams in Luxembourg. Teleworking saves time by allowing people to get to work without wasting hours in traffic jams or on overcrowded, often late trains. More widespread use of teleworking could potentially help to reduce road congestion and also achieve a better balance in terms of CO2 emissions.

However, it should not be forgotten – and the OGBL made this clear at the hearing in the Chamber of Deputies – that almost half of all jobs are not “teleworkable” by their very nature. This fact should not be overlooked when calling for “2 days of telework for all”.  On the contrary, care must be taken not to create a divide between those who can telework as part of their job and those who cannot.

The OGBL also considered that there was no need for a new “telework” law, since an interprofessional agreement between the nationally representative syndicates (OGBL and LCGB) and the employers’ union (UEL) was signed on October 20, 2020, and declared generally binding by the Grand Ducal regulation of January 22, 2021. This agreement not only regulates telework in a more flexible way than the previous agreement, but is also the first agreement of its kind between the social partners to introduce additional co-decision rights with the staff delegation.

Although this agreement does not cover civil servants and state employees, it should be noted that a draft law regulating telework in the civil service is currently being discussed in the Chamber of Deputies, which is largely inspired by the interprofessional agreement.

This does not preclude the need for some specific legislative adjustments. For example, the interprofessional agreement called on the legislator to include the telework dimension in legislation on health and safety at work.

Although the agreement of October 20, 2020 stipulates that work equipment, in particular IT equipment, is to be paid for by the employer in the case of regular telework, the employee concerned may nevertheless incur additional costs related to his or her home workstation, such as the furnishing of an office, etc. It is important to note that the agreement also stipulates that the employer is to be responsible for the cost of the equipment. In this respect, it should be noted that the agreement of October 20, 2020 stipulates that the costs of telework are to be borne by the employer. In this respect, these costs should be considered as tax-deductible expenses. In any case, and not only for teleworkers, the minimum lump sum of 540 euros for the deduction of acquisition costs should be increased, since this minimum has not been adjusted since the 1990s. Given the inflation since the last adjustment, this amount should at least be doubled.

Finally, we need to ensure that syndicates can disseminate information to all employees, including those who telework. To this end, we need to amend article 414-16 of the Labor Code, which establishes the right of staff delegations to use all means of communication available in the company, including electronic means, to communicate with employees. The same article explicitly excludes trade union communications from this provision. If delegates elected on union lists want to share information from their union with staff or inform them about union activities, they can only do so on paper, using a notice board, etc., unless there is an agreement with the employer. This means that many union delegates do not have the right to use electronic means of communication. This means that a large number of employees who do not necessarily go through the company headquarters, and especially teleworkers, cannot receive union information. This discriminatory and anti-union provision must be abolished and all delegation communications treated in the same way.

Finally, the most important issue concerning the legal framework for teleworking remains the question of cross-border tax and social security rules. These rules need to be adapted to allow cross-border workers to telework without fear of major tax implications or even social security disaffiliation.

Even before the pandemic, the OGBL had been working to harmonize the different tolerance thresholds for taxation in the Greater Region (Belgium and France: now 34 days; Germany: still only 19 days). It is also necessary to put an end to discrimination against civil servants, but also against employees of public institutions. The recent agreement with France now provides for equal treatment for all workers, but in Germany they continue to be taxed at their place of residence from the first day of telework.

Ideally, there should be a single tax and social security threshold, currently 25%. The OGBL is not opposed to the ongoing discussions at European level to raise the social security threshold to 40% of annual working time, provided that this higher threshold applies only to telework hours and not to other work services. The aim is to make telework more widely available and not to encourage social dumping by circumventing posting rules.

A threshold of 40% for both social security and tax purposes would allow all cross-border workers whose work can be teleworked to telework up to two days a week without any impact on their tax or social security contributions.

The OGBL hopes that the Luxembourg government will defend this position in bilateral discussions with neighboring countries and at the level of the European Union.

Frédéric Krier, Member of the Executive Board