CONVERGENTIONAL IMPACT OF INFORMATION TECHNOLOGIES ON REGULATION OF EMPLOYMENT RELATIONSHIPS. Gintarė Tamašauskaitė*

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1 CONVERGENTIONAL IMPACT OF INFORMATION TECHNOLOGIES ON REGULATION OF EMPLOYMENT RELATIONSHIPS Gintarė Tamašauskaitė* Vilnius University, Lithuania Abstract. The present article focuses on the analysis of an impact of the use of information and communication technologies at workplaces on regulation of employment relationships. It examines whether this phenomenon affectes the national legal systems as a convergent. This research is grounded on the analysis of the cases of an employee s right to respect for private life and of a practice of telework. It referes to national and foreign states views, the opinion of the European Court of Human Rights. Keywords: Information and communication technologies, employment, telework, employee s right to privacy INTRODUCTION During the last decades a lot of areas of the social life have been under the influence of the global technological revolution. On the one hand the information and communication technologies became the assisting measure and the factor of the labour productivity in the work process. On the other hand that promotes the discussions among legal scientists as well it brings up the purpose to explore whether contemporary labour law effectively regulates the employment relationships. Every smart technological tool creates new challenges to define a clear boundary between professional and private life, employee s autonomy and the control of his employer as well to adopt the legal regulation of new forms of work organization as a telework. Lithuanian labour law aspects on the use of the information technologies at the workplaces are not examined much on scientific level. Sometimes it could be seen a lack of clear legal rules and rear fragmentary jugement cases. The topic of research is important because of its theoretical and practical point of view. It will be analysed whether the use of the information technologies determines the changes of the traditional employment relationships regulation. The main objective of this article is to analyze the impact of the use of information technologies to legal regulation of standard employment relationships, evaluate the problems according to the labour law and other branches of law and offer possible solutions. * Gintarė Tamašauskaitė is seeking Doctoral Degree in Vilnius University Law Faculty. She specializes in the fields of labour and social security law, is interested in legal problems of discrimination, human rights in employment relationships and researches the aspects of the use of information technologies at workplaces. She is a member of the National UNES- CO s MOST Programme Committee as well of the Institute of Labour Law at Law Faculty of Vilnius University. She actively takes part in national and international scientific events, attends the French speaking projects. POLITIKA KAIP TUŠČIA VIETA 331

2 In order to reach this goal, the following tasks have been set: 1. To carry out a comparative analysis of selected underwritten fields of research: a. The use of information technologies and the protection of employee s right to privacy in informational space; b. The implementation of the telework as a flexible form of work organization. 2. To explore the interaction of national and foreign labour law solving the legal problems of the use of information technologies at workplaces. Various research methods (comparative, logical, logical and systematic analysis, synthesis, analytical and historical) were applied in this research. 1. THE USE OF THE INFORMATION TECHNOLOGIES AT WORKPLACES Historically, the Lithuanian labour law had to respond apace to the social changes. After the reestablishment of independence in 1990, Lithuania had to transform its legal regulation of the employment relationships from centralist public model to a new form and to adopt this regulation to open economic market and democracy development. During the period when the Republic of Lithuania sought to become a member of the European Union, national labour law was reformed according to acquis communautaire. Equally, we might emphasize that the transition period from an industrial to information society is obvious. Lithuania and other states have to evaluate an influence of information technologies on the legal regulation of employment relationships. The facts of the Lithuanian Department of Statistics suggest that in 2012 the computers and the Internet were used by almost all manufacturing and service companies (99.7 %) which have ten and more employees; in the fields of everyday work the computers were used at least once a week by 43.1 % and the Internet 38.7 % employees of these companies 1. It could be maintained that the use of information technologies at work is a notably common case. The decade of the validity of Lithuanian Labour Code 2 coincides with a period of strong technological progress. Nonetheless, a contract of a distance work (teleworking) was legalised just in There is the only visible modification of national labour law immediately concerned with information and communication technologies. Analytically, it could be raised a hypothesis that the use of information technologies determines the changes of collective and individual employment relationship as well as new requirements appereance for contracting parties. For exemple, in France where tradition of employees representation is active, the scientists are currently discussing the adaptability of the information technologies in collective relationships to implement representatives rights to vote on electronical form or solve the labour disputes. Meanwhile, Lithuanian representatives of employees are not as 1 Statistics Lithuania, Information Technologies in Lithuania (Vilnius: Statistics Lithuania 2012) The Labour Code of the Republic of Lithuania came into force on 1 January POLITIKA KAIP TUŠČIA VIETA

3 active as in France; therefore there are a lot of scientific discussions on fundamental questions of collective labour law reform, but not the problems of the use of information and communication technologies in collective relationships. Depending on the law traditions and the national legal systems in each country, the use of information technologies at workplaces could affect several labour law systems differently. However, we could envisage the common and transboundary problems conditioned by technological factors. The cases of a telework and an implementation of employee s right to privacy are demonstrative examples in the European Union. 2. INFLUENCE OF THE USE OF INFORMATION TECHNOLOGIES AT WORKPLACES TO DIFFERENT LAW INSTITUTES 2.1. Protection of employee s right to respect for private life The specific legal regulation of an implementation of employee s right to privacy is not provided by Lithuanian labour law. The common legal norms of civil law are applicable. It could be added that the legal personal data protection institute 3 defines the mechanism of person s right to privacy realization and the responsibility in information areas 4. Thus all information composes meaning of personal data is considered as a part of an employee s privacy like a personal data subject. An employer, who is processing employee s personal data during an employment, a performance or an expiry of an employment contract, is a controller of employee personal data. The employer has a lot of practical opportunities to follow and control the employee s electronic workplace, a work by computer and acces to the Internet. Employer s monitoring and control is not unlimited. The European Court of Human Rights explained that the legal protection of private life includes the professional activities 5. The use of information technologies at workplace could not violate an inviolability of employee s communication. An absence of neither national legal regulation nor local legal regulation was acknowledged by the European Court of Human Rights as a violation of employee s right to privacy 6. The employer in collecting the information about employee s telephonic conversations, the story of looked Internet pages or the use of digital programs, should follow all requirements that are applicable to every personal data controller. According to the Convention 7 each Member State of the European Union does not ignore the fundamental humain rights and freedoms and it appreciates the importance of employee s right to privacy. This notwithstanding, the mechanisms of its implementation and protection are different. For example, in Lithuania there is no specific national employee s communication and the use of information technologies at workplaces legal regulation, whereas French social law 3 Law of the Republic of Lithuania on Legal Protection of Personal Data [1996] Official Gazette no I. Petraitytė, Asmens duomenų apsauga ir teisė į privatų gyvenimą [2011] 80 Teisė Niemietz v. Germany, no /88 [1992] ECHR 6 Copland v. the United Kingdom, no /00 [2007] ECHR 7 Convention for the Protection of Human Rights and Fundamental Freedoms [1995] Official Gazette no POLITIKA KAIP TUŠČIA VIETA 333

4 prohibits 8 employer by local regulation to intervene in employee s personal rights and individual and collective freedoms, and limit them if it is not legitimated or proportional for attainment of his purpose. Furthermore, France uses the legal category of employee s personal life (in French is vie personnelle ). This definition expanded the conception of employee s private life (in French is vie privée ) at work 9. Thus France in solving disputes tries to separate two situations: a) an employee s life not at work and not at work time, and b) an employee s life at work and at work time. In the USA, we can find other attitude: if an employer provides the equipment for professional reasons and if for business interests need it, and an employee agrees, then it suffices to justify the monitoring and control of the workplaces 10. The legal protection of employees personal data is concurrent element of work organization on national and international level. The free movement of goods, persons, services and capital promotes to make a fresh start discussing on the harmonization of legal protection of personal data among the all Members States of the European Union. It should be noted the implementation of the Directive 95/46/EC 11. The Member States of the European Union fragmentary implemented the common principles of Directive 95/46/EC. Thus the European Commission, reacting to social force of information technologies, prepares the reform of legal protection on personal data in the European Union. According to this change (if that will be approved) the Members States will adopt legal acts to create special legal regulation of management of personal data in the employment sphere 12. The free workforce movement and the technological factors determine new challenges to find effective ways how to ensure equal and adequate legal protection of an employee personal data in each European country. It could provide more employees garanties on an inviolability of employee s communication. After the reform of the European Union legal protection of personal data, the common principles of legal protection, the concrete specific norms on employment as well a common responsibility system could be created. This model would harmonize convergentionally Member States national legal systems in the informational field of the implementation of an employee s right to privacy The teleworking relationships regulated by labour law The teleworking phenomenon also illustrates the use of information and communication technologies impact to the employment regulation. The latest American Community Survey data confirm that the growth of teleworkers (not including self-employed) increased 73 % from Code du travail de France (French Labour Code) [interactive] Article L R. J. Tour, Étude sur la jurisprudence récente de la Chambre sociale de la Cour de cassation [interactive] 10 T. Bagdanskis, P. Sartatavičius, Workplace Privacy: Different Views and Arising Issues [2012] 19 Jurisprudencija Parliament and Council Directive (EC) 95/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L Proposal for a Regulation of the European Parliament and of the Council on the Protection of Individuals with regard to the Processing of Personal Data and on the Free Movement of Such Data (General Data Protection Regulation) [interactive] 334 POLITIKA KAIP TUŠČIA VIETA

5 to 2011 though the rate of growth slowed during the recession in the USA 13. The percentage of teleworking (in employment working from home) among workers aged was 8.4 % of men and 7.1 % of women of total employment in the European Member States in Surprisingly, the global forecast for noticed that the worldwide mobile worker population was set to increase from million in 2008 (29 % of the worldwide workforce), and to 1.19 billion in 2013 (34.9 % of the workforce) 15. During last decades in this area the countries search a harmonization. The European social partners adopted the Framework Agreement on Telework in The voluntary framework agreement should be implemented during three years after the date of signature by the members of European social partners in accordance with the procedures and practices to management and labour in the Member States. European social partners prepared a joint report on the implementation of this agreement in The report demonstrated the diversity of its implementation across the European Union. In Finland, Latvia, Spain and Sweden the framework agreement was implemented through general social partner agreements which formulate guidelines for negotiators at sectoral or company level. In other countries the social partners chose to implement national or sectoral collective agreements (Belgium, Denmark, France, Greece, Iceland, Italy, Luxembourg and Sweden). In the United Kingdom and Ireland, the social partners adopted the codes of practice. In some countries the social partners decided to call on public authorities to implement the framework agreement through legislation. The provisions of the framework agreement were introduced into the labour codes (the Czech Republic, Hungary and Portugal) 17. The Lithuanian data and report were not presentend in 2006 because the Lithuanian social partners and public authorities thought that then legal regulation of homework was sufficient; there were not a lot of teleworkers, thus there was not a strong action to regulate telework. The teleworking contract came to Lithuanian Labour Code just in It replaced a homework contract. When we are analysing the convergence of the legal systems in telework case, we should pay attention to the following aspects: Concerned with a telework definition. The European Framework Agreement on Telework defined the telework as a form of organising and / or performing work, using information technology, in the context of an employment contract / relationship, where work, which could also be performed at the employers premises, is carried out away from those premises on a regular basis 18. Regarding the 115 th article of Lithuanian Labour Code 19, a teleworking contract may establish that an employee will perform the job function or part 13 Statistics by the Global Workplace Analytics and the Telework Research Network [2012: interactive] 14 EUROSTAT Reconciliation between work, private and family life in the European Union [2009: interactive] International Data Corporation Worldwide Mobile Worker Population Forecast [2010: interactive] 16 Framework Agreement of the European Social Partners of 16 July 2002 on Telework [interactive] 17 Report by the European social partners on implementation of the European Framework agreement on Telework [2006: interactive] 18 Framework Agreement of the European Social Partners of 16 July 2002 on Telework [interactive] 19 Code of the Republic of Lithuania [2002] Official Gazette no POLITIKA KAIP TUŠČIA VIETA 335

6 of the job functions agreed therein in places other than the workplace, as appropriate for the employee. The characteristics of teleworking contracts established by Government also it could be agreed by collective agreements. Lithuanian telework definition involves the homework as a one of alternating kinds of telework. It means that national definition of telework is larger and accordingly expresses the meaning of a distance work. Original term in Lithuanian is a distance work but authentical translation in English is teleworking. Conceptual differences and difficulties of different work conditions. In Lithuania, the teleworking is acknowledged as a separate contract. The Framework Agreement on Telework says that it s a form of organising and / or performing work. According to the interpretation of this Agreement it could be maintained that the telework is not another form of work contract 20. In case of teleworking, the information and communication technologies efface the boundaries. All this means that a telelocalization replaces a geolocalization because an employee can perform its function from whatever state or place. The distance work raises the discussions on the regime of work time and rest periods, the management of overtime work, the work at night and fair remuneration for work, the relation between professional and private life, the balance between work and family (especially in case of teleworking at home), the conditions of employees health and safety ensuring labour discipline and control as well as the contracting parties responsibility. Teleworking and other applications of information technologies open up opportunities for more flexibility that could be used to facilitate work private life balance. Nonetheless, in applicating flexible and atypic formes of work organization it is important to safeguard the employees rights evenly in all the European Union. Different implementation of voluntary agreements. The Framework Agreement on Telework is a volutary contract by European social partners that is implemented differently. As it was noticed that telework phenomenon has a convergentional influence to each national legal system, however the states chose the various ways to govern and regulate the modern and flexible employment relationships. CONCLUSION The use of the information and communication technologies at workplaces became powerful and convergentional instrument to realize the economic globalization. This technological impact is pronounced on national and international level. According to the influence of the information technologies and the flexible forms of employment, the employment relationships change conceptually. The employees are becoming more self-confident, active and mobile. Nonetheless these changes, the main task of labour law remains the same scilcet to provide minimal necessary standarts of an employee s legal protection. The mass use of information technologies increases the flexibility of employment, promotes the free workforce movement and creates a lot of opportunities for modern employee to choose 20 Commentary of the European Social Partners Agreement on Telework [interactive] POLITIKA KAIP TUŠČIA VIETA

7 various atypic forms to self-realise. Sometimes that unifies the professional and private social spaces. It could be added that all traditional functions of labour law persist but the new challenges increase in regulating employment relationships to acclimatize that to global and convergentionally moving labour market. The technologies factor effectes the common modernization and harmonization of the employment conditions. Also it promotes the contracting parties more actively to participate in the information and communication processes, to regulate the relationships by local acts and the collective agreements and to regularize their different interests more by the soft-law in basis of responsible partnership. Bibliography 1. Convention for the Protection of Human Rights and Fundamental Freedoms. Official Gazette, 1995, no Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals with regard to the Processing of Personal Data and on the Free Movement of Such Data. Official Journal, 1995, no. L 281, p Law of the Republic of Lithuania on Legal Protection of Personal Data (with changes and amendments). Official Gazette, 1996, no Labour Code of the Republic of Lithuania (with changes and amendments). Official Gazette, 2002, no Framework Agreement of the European Social Partners of 16 July 2002 on Telework [interactive] [accessed on ]. < 6. Code du travail. [interactive] [accessed on ]. < exte=legitext &datetexte= >. 7. Bagdanskis, T.; Sartatavičius, P. Workplace Privacy: Different Views and Arising Issues. Jurisprudencija, 2012, no. 19 (2), p ISSN Petraitytė, I. Asmens duomenų apsauga ir teisė į privatų gyvenimą. Teisė, 2011, no. 80, p TOUR, R. J. Étude sur la jurisprudence récente de la Chambre sociale de la Cour de cassation. [interactive] [accessed on ]. < etudes_documents_93/jean_richard_5796.html>. 10. Niemietz v. Germany. European Court of Human Rights, 1992, no. 72/1991/324/ Copland v. the United Kingdom. European Court of Human Rights, 2007, no / Commentary of the European Social Partners Agreement on Telework [interactive] [accessed on ] EUROSTAT, Reconciliation between work, private and family life in the European Union, 2009, Office for Official Publications of the European Communities [interactive] [accessed on ]. eu/cache/ity_offpub/ks /en/ks en.pdf 14. International Data Corporation, Worldwide Mobile Worker Population Forecast, 2010 [interactive] [accessed on ] Proposal for a Regulation of the European Parliament and of the Council on the Protection of Individuals with regard to the Processing of Personal Data and on the Free Movement of Such Data (General Data Protection Regula- POLITIKA KAIP TUŠČIA VIETA 337

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