The global labour market is in the process of change, tending towards labour flexibility, by carrying out distance activities related to employment and effective work. The main changes consist in the emergence of the concept of telework, of online platforms (crowdemployment) aiming at employment, online recruitment, work from home.
In Romania, Law no. 81/2018 on the regulation of telework activity ("Law no. 81/2018") regulated a form of remote work through the concept of telework. Telework is defined as the form of work organization through which the employee, regularly and voluntarily, fulfills the specific attributions of the position, occupation or profession he holds, in another place than the work organized by the employer, at least one day per month, using information and communications technology.
What is the difference between teleworking, changing work place by the employer and working from home?
According to Law no. 81/2018, the telework activity is based on the parties’ agreement, comprised within a clause inserted in the individual employment agreement or in an addendum thereto, so that both the employer and the employee must agree in this respect.
Changing work place by the employer
Unlike telework, in case of change of work place by the employer, the employee’s consent is not required. These cases of unilateral change of the work place by the employer are the following, according to the Labour Code:
in case of delegation or secondment of the employee to another work place than the one provided in the individual employment agreement;
in case of force majeure situations;
as a disciplinary sanction;
as a measure of protection of the employee, including in case there are reasons related to his health condition.
Work from home
The Labour Code regulates the individual employment agreement on work from home, which implies the parties’ agreement for the employee to work from home.
Unlike work from home, telework can be carried out in another place than the work place organized by the employer, including at home, so that the two notions only partially overlap.
How do online crowdemployment platforms work?
Another modality to render the labour market more flexible is the emergence of online platforms that act as intermediaries between those who work (workers) and those who benefit from their services ("employers") - crowdemployment platforms. As part of the concept of gig economy, crowdemployment platforms involve the intermediation of labour demand and supply in the virtual space.
At the European Union level, the European Commission observes that there is a growing number of self-employed people, who occupy jobs not regulated by standard contracts or who transit between salaried and self-employed activities and combinations thereof. Consequently, a large part of the labour force does not have sufficient access to social protection due to the status on the labour market or the type of employment relationship (according to the European Commission's Proposal for a Council Recommendation on access to social protection for workers and for self-employed persons, 13.03.2018).
In order to address the concerns ascertained at the European Union level regarding the protection of online workers, Directive (EU) 2019/1152 on the transparency and predictability of working conditions in the European Union ("Directive 2019/1152") was adopted.
The scope of Directive 2019/1152 also includes workers through online platforms, for which minimum rights are established in the employment relationship. Despite the fact that workers through online platforms do not conclude individual employment agreements, it is considered that an employment relationship takes place between them and their "employers". The employment relationship is defined by the Court of Justice of the European Union as any relationship on the basis of which a person carries out an activity of economic value in exchange for remuneration for and under the coordination of another person (Case 66/85).
Unlike teleworking, working from home and changing work place by the employer, crowdemployment platforms are not yet regulated in Romania. At the same time, Romania has not yet adopted measures to implement Directive 2019/1152, whose deadline for transposition is August 1st, 2022.
Considering that in the sense of employment law through crowdemployment platforms no individual employment agreements are concluded, the worker will not benefit from the rights and obligations arising therefrom (salary rights, leave, working time, etc. within the meaning of the Labour Code). In general, crowdemployment platforms provide users with terms and conditions of use that classify those who intend to work online and create an account on these platforms as self-employed. This document provides the conditions that workers must accept before starting work, such as payment methods, work evaluation and dispute settlement.
However, at the time of meeting of the agreement between the worker and his "employer", i.e. the one who requests his services, an employment relationship is concluded in a broad sense, based on which each party will have rights and obligations. In addition, based on Directive 2019/1152, national legislation will regulate specific issues related to the situation of workers on crowdemployment platforms, so that freelancing can become a good alternative for both workers and employers.