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The way we work is evolving quickly and legislation must evolve accordingly

Letlhokwa George Mpedi
By Letlhokwa George Mpedi
26 Jul 2023
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The normalisation of remote working calls for amendments to our labour laws to include a clear definition of what this entails, the rights and responsibilities of both employers and employees in these arrangements, and addressing issues such as working hours, leave and data security.

As the Covid-19 pandemic engulfed the world in 2020, life as we knew it changed. Everything went remote – teaching, learning, work and even the way we socialised. As we began to emerge from this haze, there were some practices that became more pervasive than others.

Alongside the advent of the Fourth Industrial Revolution, the future world of work has been carefully interrogated. Yet, without much pause, this future seems to have arrived quite abruptly.

As McKinsey’s Eric Roth said in a podcast, “we are all beneficiaries of this incredible amount of innovation in a period of uncertainty and calamity. To do it, many companies needed to rethink how they had to operate – that’s innovation.”

The aftermath of the pandemic has signalled the emergence of a new normal, and remote working has been an enduring legacy – but this is a reality to which we may not quite be ready to fully adapt.

A report from job search platform Flexa last week demonstrated that 88% of job seekers expressed a preference for companies that allow for “work from anywhere”, up from 80% in June, while 59% expressed a preference for remote jobs, compared with 52%.

Employers would need to develop policies in accordance with the law, specifying the terms and conditions of remote work.

There is clearly a demand for greater adoption of remote working policies, but still, it remains polarising. On the one hand, while remote working exposes organisations to diverse talent, encourages flexibility and autonomy, reduces absenteeism and decreases infrastructure costs, it can also create communication challenges, trust issues, erode company and organisational culture and emphasise loneliness and isolation.

A pertinent question is, in this new normal, how do employers and employees alike strike a balance?

Digital gap


Remote work is certainly gaining currency, but this shift in work structures is not without its challenges – particularly in South Africa. One clear hurdle is load shedding. Offices are often equipped with alternative power sources, enabling employers to provide immediate and concrete solutions. Then, there is the digital divide, the gulf between those who have access to the internet and those who do not, and connectivity concerns to tackle.

To fully support remote work effectively in South Africa, greater investment in digital infrastructure would be required, particularly with a view to widening access. This investment should focus on expanding access to the internet in underserved areas, improving broadband speed and reliability, and reducing the cost of internet services to make them more accessible.

Collaboration between the government and private sector can be pivotal in closing the digital gap and facilitating more fair remote work options throughout the nation.

Law changes


The normalisation of remote working also calls for some amendments to our labour laws to explicitly outline provisions for remote working, including a clear definition of what this entails, the rights and responsibilities of both employers and employees in these arrangements, and addressing issues such as working hours, leave and data security.

There is certainly precedent for this. Most recently, Dutch legislation was approved by parliament and is sitting before their senate to support remote working flexibility through the law in the Netherlands. This law requires employers to consider employees’ requests to work remotely, provided that their jobs permit it.

In 2020, a Royal Decree-Law implemented in Spain was implemented to protect workers’ rights to work remotely. In South Africa there would need to be amendments to the Basic Conditions of Employment Act.

Moreover, employers would need to develop policies in accordance with the law, specifying the terms and conditions of remote work. This might include guidelines for equipment provision, data protection measures and performance evaluation of remote employees. Employers could adopt monitoring systems to avoid phenomena such as cyberloafing, the act of engaging in non-work-related activities on the internet.

However, as I argued previously in Daily Maverick, through a case study of wearables, these monitoring systems can lead to inherent power imbalances and create a disconnect between employees and an organisation, resulting in less-meaningful work and, thus, fewer innovative organisations.

Right to disconnect


Elsewhere, there are safety and health regulations to consider, including possible ergonomic standards for home offices or mandating regular health and safety assessments.

Then, there is the need to ensure that employees are balancing their work and personal lives. For example, provisions might be made to prevent the exploitation of remote workers and to ensure they can disconnect from work when required. Outlook, for instance, has recently introduced a nifty feature that encourages communication only during work hours through a banner above draft emails.

As it stands, South African law does not acknowledge the right of employees to disconnect from work. In 2021, Marthinus van Staden suggested that South Africa should adopt a code of good practice outlining employees’ right to disconnect, which could include parameters of working hours and when emails can be sent, for instance. There is precedent for this in Ireland and in Australia through legislation and the work of unions.

While remote working may certainly be the way of the future, we cannot simply leap into this without considering the legal framework. The future of work is rapidly changing before us, and we need to do more to keep up. As former US president Abraham Lincoln once said, “the best way to predict the future is to create it”. DM

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