Working outside of the employer's business premises deeply conflicts with the traditional concept of the working environment based on the worker's physical presence in a determined workplace. Nevertheless, exponential technological progress and globalisation trends have changed widely accepted notions about employment and placed work productivity above any other employment indicator. Therefore, the employee's physical presence in the employer's business premises has ceased to be a decisive condition for their inclusion in the organisation and processes. Furthermore, the COVID-19 crisis has demonstrated the significance and benefits of remote work and anticipated its expansion in the years to come.
Although Montenegrin labour laws already regulate remote work, many employers have been forced and rushed into the unplanned switch from traditional to remote work. Moreover, as the idea of remote work is relatively new in the Montenegrin labour market, the lack of relevant practice has increased employer's risks of breaking the laws and left many employees uncertain about their rights and obligations.
The Montenegrin concept of remote work
Article 42 of the Montenegrin Labour Act envisages a special employment arrangement for work performed outside of the employer's business premises. The scope of this employment agreement includes work activities directly deriving from the employer's registered business activity, but also any other work activity which might be related to it. This employment structure might be implemented through two different modalities:
- telecommuting (or remote work); and
- work from home
Telecommuting refers to an employment arrangement where the work activities are performed using various information technologies (such as the internet, e-mail, telephone). Therefore, this employment arrangement encompasses the possibility of working from any place in the world and corresponds primarily to those business activities unaffected by frequent travel and which do not require the use of any additional materials and/or resources (apart from the information technologies).
On the other side, work from home occurs when an employee is performing their working duties mostly and continuously from their residence (regardless of whether the employee is the owner or a tenant). The institute of work from home is designed to accommodate the needs of those whose work might be performed remotely, but still requires the use of certain materials and/or machinery which cannot be rapidly and efficiently transferred from one place to another.
The most distinctive and attractive element of working outside of the employer's business premises is the high degree of autonomy and the ability to freely organise one's daily working schedule. Therefore, many tend to confuse and misinterpret the employment agreement for the performance of work activities outside of the employer's business premises with similar labour law institutes, such as self-employment or the performance of so-called "free professions" (e.g. artists). The Montenegrin legislator clarifies that the performance of work activities outside of the employer's business premises is a pure employment relationship, as it firmly reflects the position of legal subordination, i.e. a situation where the employee cannot refuse to perform their working duties and/or to comply with the employer's other requirements. Therefore, an employee who performs work outside of the employer's business premises still enjoys all labour and social rights and benefits deriving from the employment agreement and the applicable laws.
What to keep in mind
In March 2020, the independent, non-governmental organisation Montenegrin Employers Federation [Unije poslodavaca Crne Gore] issued an nonbinding opinion for its members that in case of extraordinary circumstances (such as COVID-19), remote work might be introduced solely based on the employer's internal decision, which will be communicated to the employees.
Nevertheless, in the regular procedure, work performed outside of the employer's business premises will be regulated by a special employment agreement. Apart from the standard elements of an employment agreement, it must contain at least the following information:
- specification of the work activities and a clear description of how the work will be performed;
- detailed work conditions and a mechanism by which the supervision of the work performed will be conducted;
- the use of the employee's equipment and resources for work purposes and compensation for such expenses;
- compensation for all other expenses concerning the work performance; and
- other rights and obligations deriving from the special circumstances of the employee's work.
The employer is expected to keep special records of all employment agreements for work performed outside of the employer's business premises. It also has a duty to notify the labour inspection about all employees performing their work in such a manner. The labour inspection can prohibit such work if (i) there is an imminent danger to the employee's life and health, and (ii) the performance of the work activities outside of the employer's business premises might endanger the environment and/or public health.