Author: Sai Akanksh Deekonda, V year of B.A.,LL.B.(Hons.) from National Law Institute University, Bhopal
WORK FROM HOME POLICY AND EVALUATION OF THE PERFORMANCE OF THE EMPLOYEES WORKING REMOTELY UNDER THE GARB ON NEW LABOUR CODES
“Work from Home (WFH)” is an emerging form of work practice, where workers are offered Geographical flexibility. The impact of COVID has made the companies adapt the “Work from Home” policy for ease of business amidst pandemic times. Most companies successfully maintained their business, using virtual means, but have entirely disbanded the workers from their offices. The routine of employment for an employee post-COVID has been utterly different from that of Pre-Covid scenarios.
Recognition of WFH as a policy
The first instance of recognition to the "Work from Home" Policy was made by International Labour Organization (“ILO”) in the year 1996 through the “Home work Convention”. It has decided to formulate such a convention after discerning the strand of Home workers as a neglected workforce worldwide. The convention defines “Home-work” as any work carried out by the person at home, or any other place of his choice other than workplace set by his employer, for remuneration resulting in a service or product, as stated by the employer. The person performing such work will be known as a homeworker. The main object behind such convention was to bring equality between the workers irrespective of place of work, for remuneration, occupational health and safety, statutory social security, and any other protection as prescribed by law. The convention also mandates the states parties to implement “Home-work” policies in their respective countries and formulate other policies that ensure equality and equal protection for workers.
In its recent report titled “Work from Home: From invisibility to Decent Work”, ILO recommended that since the WFH employees were at risk of working overtime and there's a threat of privacy breach, they shall have a ‘right to disconnect’ after the working hours. It has especially drawn in the light of privacy concerns at home environment viz-a-viz artificial intelligence softwares’ tracking an employee's movements.
Implications of the Work From Home Model
WFH policies provide geographic flexibility in deciding work hours. It would reduce transportation time and costs of an employee, primarily those who reside distant from their homes. It would also help the employees get the skill and adequate training in meeting the requirements of time and help maintain a perfect balance between professional and personal lives.
Despite the work at home environment being beneficial in many ways, it causes certain risks. Any “alternate place” will not be considered as an “establishment” under law, so naturally, questions of health, safety and working conditions outside the office/factory, arise are all the more serious, now that there is a pandemic looming over us. Home workers are asked to finish work within deadlines having no regard for their working hours & mental health, and on top of that, they are monitored 24/7, which increases the amount of pressure and stress in these delicate times. The flexible work hours would mostly catch the employee up by eliminating the separation between professional life and personal life. There would be financial burdens, especially for those who start their employment under the WFH policy, as the policy includes costs of buying equipment, internet connectivity, safety equipment, and maintaining screen timing.
Legal implications include, the violations of equality, liberty and other Human rights. A person working under an employer in a permanent establishment would undoubtedly have protection under laws for worktime, intervals, mandatory week-offs, representation of trade unions and other wage protection laws. Most of these laws doesn't find their place in a home environment because of personal, private and cultural issues. Companies would also get overburdened for providing adequate facilities to WFH employees.
Global perspectives over WFH and the way of Implementation
A limited number of countries has ratified the convention despite being in force for over 20 years. Very few countries have adapted and enacted a comprehensive legal framework concerning home-based work under national legislation. There are some other countries, which have initiated policies after the advent of the pandemic. Spain has passed legislation on “remote work” to make it reversible, voluntary and official. The labour law was classified and made it applicable to workers working in an establishment and remote work employees who have been working for at least three months or 30% of the employees' working days. United Kingdom ("UK") has adopted Flexible Working Arrangements ("FWAs") to support the employees with care responsibilities, to request for FWAs through a proposal and negotiation procedure Philippines have developed a telecommuting program with the employers by including alternative workplaces, working hours,equipment costs, health, occupational safety, applicable benefits, and data privacy. The employer shall also ensure that tele-employees are treated in the same way as the employers' peers.
India's Adaptation to WFH Policy
The "Work from Home" was an occasional policy before the pandemic. The companies have adapted to such policies over national lockdown, and more than 95 % of the companies are running their business under WFH policies today. Giant companies like Tata Consulting Services [“TCS”] or Mahindra aim to put most of their employees working from home. The policy also helped other companies boost their business, especially those adapted to the homework culture but has drawn a significant drawback to sustain for the long-term. "Labour" and "Employee" are the essential factors in running the corporate.
The Indian legislation related to labour, being under evaluation for enacting new policies to meet the time, does not adequately protect workers under WFH policies. The new Industrial Relations Code of 2020 defines “home-based work” as the work carried out at employees' homes and offered discretion to the employee about working from home. However, the code does not provide for the definition of “Work from home”. The definition has to be understood from the ILO 177 convention, and the code set out legal principles and other facets for such home-based work.
Concerns regarding the applicability of labour laws
There are numerous Indian laws (State and centre) that exist to protect the workman in corporate environments by entitling them with certain rights over the workplace. In the WFH system, one of the main concerns includes deciding what could be called "workplace" and how workman working from Home environments is offered protection under the code.
The labour code in India provides for the maintenance of Statutory Records. Such records remain impuissant as it is unable to cover, the contribution made by the workman working under WFH. Nevertheless, the labour code mandates the employer to track the work hours and pay for overtime work, which has become difficult to ascertain under WFH policy. The labour code also provides health, safety, and other occupational standards, which would remain impuissant under the WFH policy. The policy makes employers subjugate the employees for personal and professional gains. No case under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH”) Act for Voyeurism or Harassment, be made under the policy since harassment has to cause in the “workplace”. A person couldn't make a case even under labour laws because the liability cannot be stretched too far under the dilemma set out for deciding “Workplace”.
Employees are given flexible and limited work hours under the labour code, and mandates employers to pay overtime wages to ensure a safe workplace and fair wages. Under WFH, two problems would arise, i.e., firstly, the number of hours of work remain uncertain for both employers and employees. Employers usually use particular software for tracking employees' work time, but the same also raises privacy concerns, as the “Home” of an Individual comes under the purview where absolute privacy has to be ensured. Secondly, there are different state legislation enacted for wages, and it is not a settled question of law on deciding the applicable law on the persons working Inter-state.
Concerns regarding Applicability of Tax laws
The other area which has remained uncertain was tax under WFH policy. The Tax on the gains made by the working employee of a company from home in India certainly raises an issue of the tax whether the same could be taxed as resident income or source income. Organization for Economic Co-operation and Development (“OECD”) entails that pandemic has caused a Force Majeure event, and all the income earned by such employee would be classified as Source Income for tax purposes. Nevertheless, India is not a part of the OECD and does not have an obligation to follow its guidelines. A Notification has been issued by the Central Board of Direct Taxes ("CBDT") regarding the tax implications of non-resident individuals stranded here. However, it is yet to clarify the taxation status under "Work from Home" based models.
Therefore, the position of “workplace” has to be settled expediently to meet the needs of the time. The only mention of work from home (WFH) in the Labour Codes for Service sector issued vis-à-vis the Model Standing Orders for the service sector, 2020. This order guides the employer on the rules of conduct for workers. An employer may allow his employees to WFH, subject to any contract or agreement between the parties. However, this barely qualifies as a guideline for a comprehensive WFH framework.
Conclusion & Suggestions
It is the high and most crucial time for the nations to adapt to the Home Work Convention of the ILO. The convention should also get modified to meet the requirements of the present time. The state parties shall recognize WFH as a mode of employment and enact such laws that provide protection and other human rights for such persons and entail him with equality as a person working in the establishment. All the vulnerable home-workers at par with other workers must be provided with terms of social security, safety and health, and a definitive legal understanding of terms relating to “home-based work” like “remote work”, “telework”, work at home have to be provided.
Companies shall supply the equipment, resources and consumables, and employees must be protected with wages, compensation for equipment expenses and data protection, with the right to digital disconnection. Clear terms of WFH policies have to be indicated to, acknowledged and consented to by employees during Employment Agreements. Any disputes that arise subsequently has to be resolved, and a quick solution is arrived at by enacting a law that encompasses WFH and its regulatory frameworks.
India should ratify the ILO 177 Convention and set the legal position of WFH expediently. It would be necessary for the country in having a separation code/ chapter governing all the employees working in the territory of India under WFH policy. The legislation/ Judiciary should set out a proper definition of “establishment” and “workplace” to include home environments under WFH and provide all rights enshrined under the constitution and other statutes working under the policy. Companies have to provide clear and distinct terms for WFH and avoid subjugating or exploiting workers/employees. The steps have to be taken effective immediately to meet the needs of the current times.
In conclusion, the article has highlighted and elucidated the impact of unforeseen times call for comprehensive national-level policies for home workers and their proper implementation. There aren't many countries with a comprehensive legal mechanism for home-workers, but the ones highlighted above amongst others are worth drawing inspiration from. It's high time that to heed the home-based workers by providing them with legal support. If they are neglected, the human rights of millions of workers who have contributors and pillars of the capitalist economy are compromised.
References
1. ILO Convention No. 177, art. 1.