Equality reform (3): new article 34.8 of workers statute: a la carte working day depending on work-life balance needs?

In this third post about the equality reform in Royal Decree-Law 6/2019, of March 1, on urgent measures guaranteeing equal treatment of men and women and equal opportunities in employment and occupation (“RDL 6/2019”), we discuss one of the most important amendments in this royal decree, which concerns the right to adjust working hours. RDL 6/2019 amends article 34.8 of the Workers Statute (“WS”), introducing a 180-degree change in the previous regulation by turning a rule that almost went practically unnoticed into a rule establishing a right of “autonomous” exercise.Of the important new developments introduced by this new wording, we highlight the following three:

1. Workers will not only be entitled, as they were before, to adapt the duration and distribution of their working day, but to also adapt the organization of their work time and how they provide their services, including remote working. To do this, they must reach an agreement with their employer in negotiations in which the workers must explain their work-life balance needs and the employer its organizational and production needs. It will be interesting to see how the “reasonableness” and “proportionality” of the two parties‘ needs will be interpreted.
2. In the former wording, the collective bargaining authorized the exercising of the right, and a lack of regulation in the collective bargaining agreement or individual agreement led to a discreet use of that right. Now, collective bargainingonly establishes the conditions for exercising that right.
3. However, the main new development and what stands out in this new rule is the individual negotiation and the ad hoc negotiation process. Therefore, if the collective bargaining agreement does not establish a different process, requests for adjustment of working hours will lead to an individual negotiation process of a maximum duration of 30 days. After, the employer will submit its decision in writing accepting the request, proposing an alternative or rejecting the request; in the latter case, it must justify its decision providing objective reasons. Again, it will be interesting to see how this new individual negotiation period will develop and whether, for example, the wide-ranging legal doctrine on negotiation in good faith is applied, how it all develops and what the requirements will be.

There are certainly similarities with reduced working hours and the right to specify working hours, e.g., the need to justify a rejection of requests, the reference to the parents of children until they are 12. However, this reformed work-life balance right includes as an option the employer’s justified rejection (based on “objective reasons”), while the employer must accept the reduced working hours (not the specification of working hours).

Despite the above, the wording of the rule generates questions. It is disconcerting to see that the rule refers to a family and work balance but does not mention personal life, which is mentioned in other rules in RDL 6/2019. It is also disconcerting that the lawmaker only refers to workers with children until they are 12, indicating that later they cannot exercise this right.

We consider this an amendment of an article with a huge impact on companies’ day-to-day activity. However, we have to wait and see how it is applied, how the employers’ decisions are challenged, and how the right is exercised in practice.

You can access the posts I and II by clicking these links.