Employment and Social Development Canada (ESDC) intends to modernize labour standards and in 2018 published a report summarizing the views heard in public consultations.[1]<\/a> One of the main points made by unions and labour organizations, employers and employer organizations, academics, advocacy groups, and other experts is that the concept of working time must be updated to be applicable to the modern age.[2]<\/a> The report refers specifically to the problem of work intruding on individuals\u2019 personal lives due to the new technological ability to conduct work from a distance. For example, the report cites an online survey respondent as stating, \u201cI have seen in my own family my husband burn-out and get severely sick from working around the clock and constantly being \u2018on\u2019 for his project management job. I would love to see the government set a tone and limit work beyond normal working hours.\u201d[3]<\/a> According to the report, 93 per cent of the survey respondents believed that employees should have a right to refuse to respond to work-related communication outside of working hours (i.e., they should have a \u201cright to disconnect\u201d).[4]<\/a> Referring to other initiatives around the world, the Canadian government identified the issue of constant work in the modern world as a target for regulation in 2019, with the focus on the right to disconnect.[5]<\/a><\/p>\n Canada is clearly not alone in this challenge. Countries around the world are becoming occupied with the question of working time in the digital reality due to the technological ability to conduct work from a distance.[6]<\/a> This article contributes to this discussion on working time and puts forward proposals for regulation that can be seen as giving content to the amorphous right to disconnect, while also adding additional elements that work toward an optimal solution.<\/p>\n To address the problem of working time in the digital reality, this article uses an interdisciplinary methodology and sheds light on the legal, sociological, and internet literature on the subject matter. It explores the apparent gap between the traditional notion of working time, as it appears in Canadian law, and the actual way in which people work today beyond the traditional framework of time and space.[7]<\/a> The article begins by describing the increased ability to work from a distance through the use of information communication technology (ICT), which is now present in almost every household. The ability to work from a distance is referred to in the literature as \u201ctelework,\u201d \u201cmobile work,\u201d or \u201cICT mobile work\u201d (ICTM),[8]<\/a> which exists in two main forms: one is formal and the other is sporadic, informal, and distributed throughout the day. Both forms of telework have become more popular in recent years. The article elaborates on these two forms of telework, their frequency, and their implications for working time, rest time, and other labour rights.<\/p>\n The article then addresses the question of regulation. The evolution of working time, and particularly the evolution of the ability to conduct telework, has led to two general responses. Each response originates in a different field and stems from different foundations and motivations. The first response is situated in the field of law and stems from labour rights. This response includes attempts to return to the classical concept of working time and to restrict the working time schedule. This position is embodied in the right to disconnect, as mentioned in the ESDC report. The second response emanates from the field of new management and stems from notions of efficiency and flexibility. It celebrates the new technological ability to conduct work at any time and in any place. It advocates moving past the dominant role of time in labour regulation. The article demonstrates how these two opposing models provide only partial solutions to the working time dilemma and suffer from crucial deficiencies: they either ignore the dramatic changes in the digital reality and do not offer any pragmatic way to deal with these changes, or worse, they ignore the basic principles of labour rights.<\/p>\n With this background, this article offers several basic proposals for an alternative model of regulation to resolve the working time dilemma. The proposals are based on the same purposes underlying the right to disconnect, but also take into consideration general goals of regulation in the modern digital age, such as autonomy and flexibility, as well as the need for clear and specific rules. This article thereby proposes default rules that provide basic protection to the employee and retain the idea that employees should be compensated for their actual working time and enjoy genuine rest time during the workday. This protection is enabled through the format and logic of ICT. At the same time, the default rules will also enable the parties to negotiate and agree on the financial value of additional working hours in a way that takes into account the new possibilities of the digital age, particularly regarding flexibility and autonomy.<\/p>\n The article proceeds as follows: Part I addresses the role of time in Canadian labour law and elaborates on the centrality of working time in the labour field. Part II focuses on the widespread use of ICT and the global phenomenon of telework. It elaborates on the two main formats in which work can be carried out remotely and discusses the impact of telework on working time and the rights related to it. Part III presents the two opposing responses to the working time dilemma in the digital reality. After discussing the deficiencies of the current models, Part IV offers a new framework of working time regulation that takes into consideration both the purposes of labour law and the logic and structure of the digital world.<\/p>\n Time is an important component of labour law. Many Canadian provinces, like legal systems elsewhere, aim to organize working time and connect it to the employee\u2019s salary and rights. Canadian provinces set an hourly minimum wage.[9]<\/a> The working day is divided into time units and provides the employee concrete \u201ceating periods\u201d after a certain number of working hours.[10]<\/a> The working day or week is usually limited to a certain number of hours, and with some exceptions, the employer cannot keep the employee working for more than the maximum permissible number of time units.[11]<\/a> It is also common for employees to receive overtime payment if they exceed a certain number of time units of work per day or month.[12]<\/a> The employee is entitled to rest hours free from work at the end of every working day as well as a rest day free from work every week or two weeks.[13]<\/a> Lastly, the employee is entitled to sick leave, holiday leave, and vacation leave.[14]<\/a> The frequency, exact scope, and length of the leave times are dependent on the employee\u2019s number of working hours and the hourly wage.[15]<\/a><\/p>\n The notion of time in labour law, and of working time in particular, is considered \u201ca social construction arising from evolving economic necessity and changes in what is perceived to be humane hours of work.\u201d[16]<\/a> During the industrial revolution, the idea began to develop that working time should be distinguished from other time units of life, as did the notion of an hourly workforce.[17]<\/a> The concept of working time was understood from diverse socio-economic perspectives and interests. Marx was among the first who perceived working time as a way to turn labour power into a commodity that was traded by the employee to earn a living.[18]<\/a> Thompson expanded on this Marxist notion of time as a currency. He argued that in industrial capitalism, time is a tool for disciplining employees: the employer controls employees by controlling their time. Employers govern their employees\u2019 conduct during the workday and ensure that it is not \u201cwasted\u201d on activities other than work.[19]<\/a><\/p>\n This notion of employment remains relevant today.[20]<\/a> During official working time, employees and their time are considered to be subordinate to the employer\u2019s will and labour tasks.[21]<\/a> Unless otherwise agreed upon, the employee is free to conduct private tasks only once the working day is over.[22]<\/a><\/p>\n Today, working time regulation is considered to be \u201cone of the most important objectives of labour law and collective bargaining\u201d around the world.[23]<\/a> Working time regulation is perceived as particularly important from the employee\u2019s perspective, as it seems to have the most direct impact on employees in the workplace and in their personal lives.[24]<\/a> Research demonstrates that the organization of working time has profound effects on the physical and mental health of employees and on their well-being.[25]<\/a> Overwork without clear breaks during the day and between working days can cause exhaustion, illness, and mental health issues, as well as disturbances to the employee\u2019s normal routine with family and friends.[26]<\/a> Limits on the duration of work and the obligation to pay for work are also related to the employee\u2019s dignity. Employees are entitled to enjoy break time and to be fully compensated for all the work they have performed; they are not merely a tool for the employer\u2019s productivity and profit that can be used all day long.[27]<\/a> Moreover, due to the employee\u2019s social and psychological dependence on the employer, working hour regulations are needed to ensure that basic rights (hourly minimum wage, overtime payment, breaks, etc.) do not depend on the employer\u2019s goodwill.[28]<\/a><\/p>\n For these reasons, working time regulation is also important for society as a whole. Moreover, limiting the working time of each employee can ensure that more people can enjoy employment opportunities,[29]<\/a> thus reducing the level of unemployment in society.[30]<\/a> The regulation of working time and payment is also justified to ensure the competitiveness of the market.[31]<\/sup><\/a> As the International Organisation of Employers has observed, an \u201cappropriate working-time regulation can play an important role in the development of rules for the effective organization of working time, which has an important effect on enterprise performance, productivity and competitiveness.\u201d[32]<\/a> The concept of working time is therefore crucial in labour law.[33]<\/a> However, the digital reality puts significant strain on the idea of working time units that require compensation and on the distinction between working time units and other time units of our lives. The next section will identify the implications of this change.<\/p>\n One of the implications of the digital reality is that the once clear and fixed boundaries of time and place have become blurry and amorphous.[34]<\/a> To understand this implication in the concrete context of labour law, we must understand the impact of information technology and ICT on society and labour. ICT is the technological infrastructure that enables people to access, transfer, use, and store information on the internet.[35]<\/a> ICT enables employees to easily receive information and transfer it to the workplace, as well as be available for work tasks outside of the workplace at considerably lower financial cost.[36]<\/a> As a result of this, the daily routines of many office workers have changed.[37]<\/a> Employees are now increasingly working outside formal offices in diverse formats of what is defined as \u201ctelework\u201d (or ICTM or mobile work).[38]<\/a> Telework refers to \u201call types of technology-assisted work conducted outside of a centrally-located workspace.\u201d[39]<\/a><\/p>\n There are many forms of telework. For the purposes of this article, I will divide telework into two categories: formal telework and sporadic telework.[40]<\/a> These two types of telework take on different shapes and have different motivations, but both blur the notion of working time units\u2014with implications for break time, maximum permissible working time, overtime payment, and so on. In the following sections, I will elaborate further on each form of telework and discuss their implications for the notion of working time.<\/p>\n Formal telework refers to a workplace arrangement in which employees have a formal agreement with their employers that explicitly enables them to conduct some of their work outside of the office at their preferred times.[41]<\/a> Formal telework is associated with preferable schedule arrangements for the employee.[42]<\/a> Many employees choose to work from home because it provides more flexibility and freedom of movement, allows them to enjoy a less stressful work environment, and enables them to be more efficient.[43]<\/sup><\/a> Telework also strengthens employees\u2019 feelings of autonomy and control over their work.[44]<\/sup><\/a> Many parents, particularly mothers, prefer to conduct telework to facilitate better work-life balance.[45]<\/sup><\/a><\/p>\n Although some scholars argue that the expansion of formal telework is much slower than expected,[46]<\/a> it has become a widespread phenomenon.[47]<\/a> In 2013, the Arcus Human Capital Survey demonstrated that 18 per cent of its respondents had conducted telework.[48]<\/a> As of 2018, according to the Canadian Internet Registration Authority, 54 per cent of Canadians with home internet conducted telework at least occasionally, while 20 per cent did so very often.[49]<\/a> Moreover, the Canadian government has implemented a pro-telework policy for employees in the federal public service that enables them to request permission to occasionally conduct telework.[50]<\/a> An EU study from 2017 stated that \u201c[t]he incidence of T\/ICTM work varies substantially across countries, ranging between 2% and 40% of all employees, depending on the particular country and the frequency with which employees carry out T\/ICTM work.\u201d[51]<\/a> Countries that especially favour telework are Finland, Japan, the Netherlands, Sweden, and the United States.[52]<\/a><\/p>\n Formal telework has become common in numerous fields and occupations,[53]<\/a> particularly middle-income and high-income occupations that are information-based and require concentration and autonomy.[54]<\/a> It is most common among professionals and managers, but also occurs among clerical support and sales workers.[55]<\/a> At the periphery of formal telework is the phenomenon of \u201cfull\u201d teleworkers who work only from home, and either rarely or never attend any formal workplace. ICT increased the number of these positions for both highly paid knowledge workers and low-paying jobs in the sales and service sectors.[56]<\/a><\/p>\n Formal teleworkers supposedly work the same number of hours at home as they would in the office. In practice, however, formal telework often substitutes time \u201cfrom leisure to production.\u201d[57]<\/sup><\/a><\/p>\n A Canadian study using data from 1999 to 2001 demonstrated that already at that point in time, out of the 8\u20139 per cent of the workforce that engaged in telework, a third performed unpaid work at home beyond the formal work arrangement.[58]<\/a> A comprehensive comparative study by the International Labour Office (ILO) and Eurofound reported that across Europe, teleworkers \u201ctend to work longer hours than average employees.\u201d[59]<\/a> A subsequent EU study explained that telework \u201cleads to working beyond normal\/contractual working hours, which often appears to be unpaid.\u201d[60]<\/a> Many teleworkers tend to work \u201call the time\u201d and often must be available to work for the entire day, without any genuine ability to distinguish between work time and non-work time or to enjoy a real break.[61]<\/a><\/p>\n Thus, even though this form of telework is supposedly organized and bound to a formal work setting, it leads to more working time units for which the employee is not fully paid and to more blurriness between working time and leisure time units.<\/p>\n As a result of new technologies, ICT has not only enabled employees to work remotely in accordance with a formal agreement with their employers, but has also generated new forms of remote work for many other employees who are not considered teleworkers. Many employees who are formally required to work only a concrete shift in the workplace find themselves also working at home during their leisure time.[62]<\/a> This sort of working time at home is invisible and not explicitly included in an employment contract, nor is it formally planned in advance.[63]<\/a> It is frequently conducted alongside the private tasks of an employee.[64]<\/a><\/p>\n Thus, due to the common use of smart devices that can be used for both work and entertainment, such as cellphones or tablets,[65]<\/a> the notion of telework has changed and is gaining additional dimensions; it is becoming less organized and much more ad hoc.[66]<\/a> This form of telework is most reflected by employees\u2019 tendency to occasionally check emails on their cellphones during what is supposed to be their leisure time. It is also apparent when employees receive and respond to professional texts or WhatsApp messages during evenings or weekends, take work-related phone calls outside the office, and plan their workdays in the evenings using social media, scheduling software, or chat programs.[67]<\/a><\/p>\n A useful description of this phenomenon is embedded in the phrase \u201cthird generation of telework,\u201d which refers to the extended ability to conduct telework.[68]<\/a> Genin defines this change in telework as \u201ctime porosity,\u201d which refers to \u201ccontemporary forms of interference between working time and personal time, transcending the traditional opposition between work and non-work.\u201d[69]<\/a> Ofek-Ghendler refers to this phenomenon as \u201cw-est,\u201d a combination of work and rest.[70]<\/a><\/p>\n The phenomenon of time porosity has crucial implications for an employee\u2019s work-life balance. Since we are considering numerous sporadic moments that are not included in the formal working hours for which the employee is paid, it is extremely difficult to calculate and estimate their total number or frequency.[71]<\/a> A 2015 online survey by the Angus Reid Institute examined the scope of this phenomenon in Canada, showing that 41 per cent of the respondents who used technology in their daily work regularly checked their professional emails or texts outside of regular office hours, and around 31 per cent also responded to some of these emails or texts outside of official working hours.[72]<\/a> A similar result was found in Genin\u2019s empirical study based on data from Canada: as a result of ICT and the increasing number of obligations to both work and family, around 50 per cent of the respondents who were mothers stated that they \u201csystematically resume work in the evening (one hour on average) to be able to leave the office in time to pick up their children.\u201d[73]<\/a> Genin clarifies that this form of \u201cwork at home is rarely formal telework (i.e., framed by a work contract) and it mostly takes place beyond regular office hours. Working a third shift thus often remains informal and unseen work.\u201d[74]<\/a><\/p>\n Time porosity is especially common for employees in senior positions, who report sacrificing family time in order to devote more time to constant remote work.[75]<\/a> It is also common among junior employees, who are often implicitly required to be constantly connected and available online to their employers.[76]<\/a> These sporadic moments of work have also become the reality in occupations that are not considered to be traditional office work, since many of them use computers and cellphones as an integral part of the daily work routine.[77]<\/a> Doctors, social workers, and teachers, for example, along with many other employees whose core work is to constantly engage in human interactions with clients, are also expected to occasionally check emails or WhatsApp messages from home and to be constantly available online or over the phone.[78]<\/a> Thus, time flexibility has also penetrated the traditional offline labour market and made employees\u2019 working schedules and time more fluid than ever before.[79]<\/a> In other words, the digital reality seems to be setting new standards of time fluidity and flexibility for all industries.[80]<\/a><\/p>\n The digital reality may have created new standards of work in the form of more flexible and fluid work arrangements, but this does not necessarily mean that the notion of working time is not relevant in today\u2019s world. The purpose of ensuring the mental and physical health, well-being, and dignity of the employee is still relevant and vital.[81]<\/a> In fact, due to the constant connectivity to work, there seems to be an even greater need to protect the well-being and health of employees and to ensure that employers do not use their power to compel employees to work all day.[82]<\/a> At the same time, the digital reality, and ICT in particular, also strengthens and enables positive outcomes for the employee, such as enhanced flexibility and autonomy in work arrangements, which are worth preserving.[83]<\/a> It is therefore necessary to consider how to regulate working time and time-based salaries for employees who engage in different forms of telework, given the unique difficulties and opportunities associated with the digital reality.<\/p>\n In this section, I present two opposing ways to deal with the modern working time difficulties. The solutions are based on different motivations. The first solution aims to maintain the classical idea and purposes of working time and thus intends to decrease time fluidity. The second solution seems to celebrate the changes ICT has brought and to abandon the idea of working time, instead preferring goals such as employee flexibility, autonomy, and productivity. As a result, it moves from a time-based salary to performance measures and a performance-based salary. After exploring these two contradictory solutions and their deficiencies, I offer an additional, more nuanced solution that takes into account the purposes of labour law, the interests of all relevant parties, and the uniqueness of the digital reality.<\/p>\n The difficulties of having a fixed working time schedule and the inability to distinguish between working and personal time in the age of ICT and telework have caught the attention of governments and social partners in some countries. Restrictions in this context are usually defined as \u201cthe right to be disconnected\u201d or \u201cthe right to disconnect.\u201d As explained below, this right is in its initial stages of development and has so far been mostly implemented voluntarily at the sector or company level in a few European countries.[84]<\/a><\/p>\n France was the first country with a formal right to be disconnected.[85]<\/a> As of 2017, French law requires workplaces with more than fifty employees to start negotiations to define the right of employees to disconnect after their formal working hours in a way that respects their personal and free time.[86]<\/a> If the parties cannot reach an agreement, the employer, after consulting with employee representatives, must publish a charter that clarifies the duties and rights of the employees beyond formal working time and allows the right to disconnect.[87]<\/a> The French law clarifies that employees cannot be punished if they refuse to answer emails or phone calls outside of their working hours.[88]<\/a> In addition, the law requires the parties to negotiate the exact meaning and scope of the right to disconnect, but does not impose any concrete binding rules on how to do so.[89]<\/a> Based on this law, in July 2018, the French Court of Cassation (the highest court in the French judiciary) ordered, for the first time, compensation of \u20ac60,000 for an employee whose employer failed to respect the right to disconnect outside normal office hours.[90]<\/a><\/p>\n Even though the French law seemingly protects the right to disconnect in its simplest meaning, some have questioned its actual ability to protect the right of the employee to enjoy genuine rest time. This is mainly due to the contemporary work culture of non-stop email communications and the fact that the law does not stipulate precise rules for how it should be implemented.[91]<\/a> Thus, since this is a new policy that aims to modify a common work culture, in order for it to be implemented effectively, the relevant parties must be provided with concrete tools that will allow them to do so.[92]<\/a> In a similar manner, the French law does not provide the relevant law enforcement authorities with the power and the necessary measures to ensure that the right to disconnect is upheld.[93]<\/a> The French right to disconnect is considered to be a \u201csoft law\u201d that forces the relevant parties to negotiate. However, what happens when these negotiations reach a dead end? How can the employees\u2019 rights be enforced in those cases?[94]<\/a><\/p>\n This might be why, as Emanuele Dagnino demonstrated, many of the French collective agreements that were made on the basis of the right to disconnect eventually followed \u201ca \u2018cut-and-paste\u2019 approach,\u201d[95]<\/a> whereby companies followed their obligation to negotiate but did not make any adjustments \u201cto the specific features of the organization and to the specific needs and wills of the workers,\u201d resulting in the \u201cineffectiveness\u201d of the law.[96]<\/a><\/p>\n Additionally, the French law has a limited scope, since it does not apply to small companies (under fifty employees) or to the civil service. Consequently, the French law has created unwanted gaps between these companies and large companies in the private sector regarding an employee\u2019s right to disconnect.[97]<\/a><\/p>\n Italy has also established a right to disconnect.[98]<\/a> However, the Italian law seems to be even more limited in scope than the French one. Unlike the French law, which is based on collective negotiation, the Italian law is implemented on an individual basis through a specific agreement between an individual employee and employer. Thus, the law is vulnerable to the unequal power dynamics in the workplace.[99]<\/a> The Italian law is also limited to work that is \u201ccharacterized by spatial and temporal flexibility of the work performance.\u201d[100]<\/a> This means that the Italian law does not apply to all employees. It applies only to employees who conduct work outside of their employer\u2019s premises, possibly with the use of technological devices, without necessarily having any specific restrictions regarding the working time and the workplace (i.e., it applies only to formal teleworkers).[101]<\/a> Finally, like the French law, the Italian law does not contain any concrete provisions on the exact meaning of the right to disconnect and does not provide any concrete measures for how it should be applied, nor any obligatory minimum standard of protection of the right.[102]<\/a> Thus, Italian scholars have argued that the Italian right to disconnect \u201cwill probably be inefficient for its aims.\u201d[103]<\/a><\/p>\n In 2018, Spain also developed a legal right to disconnect.[104]<\/a> The Spanish law provides both private and public employees with the right to disconnect outside of formal work time.[105]<\/a> However, just as with the French law, the concrete content of the Spanish right to disconnect is a matter of negotiation between the company and the employee representatives.[106]<\/a><\/p>\n In Germany, there are no legally binding rules in this regard.[107]<\/a> However, several voluntary initiatives at German companies (mainly car manufacturers) have emerged in recent years.[108]<\/a> In 2011, Volkswagen reached an agreement with its employee representatives that employees using BlackBerry smart phones (excluding senior management) would only be able to receive emails on their cellphones half an hour before and after formal working hours.[109]<\/a> In 2014, the German car company BMW reached an agreement with employee representatives that employees would be allowed to register time spent working outside the employer\u2019s premises as working time, and thus be entitled to compensation for the time spent outside of the workplace reading and answering emails.[110]<\/sup><\/a> Another car company, Daimler, created a policy that enables employees to set their email inboxes on holiday mode. This mode automatically deletes all incoming emails and notifies the sender of alternate contacts.[111]<\/a> The German Ministry of Labour created a working time policy in 2013 stating that its managers are not allowed to call or email their staff outside formal working hours (except in emergencies) or to discipline employees who are not available after working hours.[112]<\/a><\/p>\n The French, Italian, Spanish, and German initiatives are already being implemented, but there has been little significant research on their effects.[113]<\/a> These regulations of time seem to reduce the possibility of time porosity by encouraging negotiation between the parties on the concrete times at which the employee will be available to work. However, this model also suffers from crucial deficiencies.<\/p>\n First, along with the desirable restrictions on working time, these initiatives may prevent employees from teleworking at their preferred times in lieu of following fixed time arrangements. In other words, this approach could reduce employees\u2019 autonomy and flexibility in terms of choosing their exact working time and place. This outcome is most likely with initiatives that completely prevent electronic communication activities at certain times, such as in the German voluntary initiatives that do not enable emailing after a certain hour.[114]<\/a> This sort of outcome is also encountered in the \u201cone-size-fits-all\u201d approach in France, which \u201ccuts-and-pastes\u201d the same rules from one company to another without adjusting them to the specific needs of the employees (or the employer) and to the specific company\u2019s nature and functioning.[115]<\/a> The ability to enter and exit work throughout the day, as long as it is recognized and limited to a predefined number of hours to ensure that employees have a genuine rest period, may prove beneficial for both employees and employers in certain circumstances, so banning flexible working hours would be unhelpful.[116]<\/a><\/p>\n Second, it appears that the main reason for these sorts of cut-and-paste agreements regarding the right to disconnect is simply that the concerned parties were not provided with any concrete guidance or measures by law on how the right to disconnect should be applied.[117]<\/a> The models encourage the parties to negotiate the exact working times, but as demonstrated above, they do so without providing any concrete guidance that can be followed by the parties.[118]<\/a> The need for concrete guidance in this regard seems to be especially important since being constantly online has become the default behaviour for most people,[119]<\/a> and the habit of conducting tasks simultaneously or outside of fixed schedules has become common in today\u2019s world.[120]<\/a><\/p>\n This habit applies not only to working time but also to many other aspects of life.[121]<\/a> The sociologist Ursula Huws, for example, provides \u201cfour snapshots\u201d from the digital reality in which people are supposedly interacting with one another, and yet at the same time they are obsessively dealing with their cellphone for purposes that are not necessarily work-related.[122]<\/a> Modern youth also demonstrate how the need (and ability) to be constantly connected online or to conduct several activities simultaneously is present well beyond the scope of the labour field and has become an everyday norm.[123]<\/a> Similar observations can be made regarding the increasing number of adults who suffer from attention deficit hyperactivity disorder because of new habits that they have acquired due to their extensive use of the internet for work and leisure purposes.[124]<\/a> In other words, the digital age has generated new habits that are difficult to resist.[125]<\/a> If we wish to encourage a change in working habits, we need to provide both employees and employers with concrete tools and guidance on how to do so.<\/p>\n Another way to circumvent the difficulty of working time in the digital reality is to avoid the time-based payment model and shift to payment based on other factors, such as performance or results. The idea of avoiding time calculation originally stems from the field of management.[126]<\/a> This model of payment is not new; however, the development of ICT and the ability to conduct telework remotely have generated new theories of management that call for the transition from time-based payment to output-based payment in order to adjust to the modern technological workplace and to benefit both the employee and the employer.[127]<\/a><\/p>\n One of the leading theories in this context, taken from human resource management, is New Ways of Working (NWW), which has become very popular among companies in recent years[128]<\/a> in countries including the United States,[129]<\/a> Australia,[130]<\/a> the Netherlands,[131]<\/a> Slovakia,[132]<\/a><\/p>\n <\/p>\n <\/p>\n and others.[133]<\/a> NWW is defined as a workforce philosophy in which the employee is free to choose when, where, and for how long to work, since there is no fixed schedule.[134]<\/a> The employee can do so using various new media technologies that enable easy communication with colleagues, supervisors, and clients.[135]<\/a> In other words, employees are allowed to conduct telework when and where they wish. Instead of estimating payment based on working time, what is actually important is the employee\u2019s outputs.[136]<\/a><\/p>\n A similar approach to NWW that originated at Best Buy\u2019s headquarters in Minneapolis and spread to other companies around the world, including in Canada,[137]<\/a> is the Results-Only Work Environment (ROWE).[138]<\/a> ROWE is a corporate-led initiative,[139]<\/a> and its main task is to \u201cmove employees and supervisors from existing, implicit contracts about the expected amount of time at work toward a more explicit contract based on what is required by the job.\u201d[140]<\/a> The employee does not need to be present at the workplace or work during specific periods of time. The only requirement is that the desirable outcomes be achieved by a concrete date,[141]<\/a> or as ROWE\u2019s website formerly described it, \u201cNobody talks about how many hours they work … The focus is on the work being accomplished. … No results? No job. That\u2019s the new employee agreement.\u201d[142]<\/a><\/p>\n Over the years, several studies have evaluated the ROWE and NWW initiatives and reached contradictory conclusions regarding their outcomes. As a comprehensive international report clarifies, when dealing with the general idea of work from a distance, \u201c[b]oth positive and negative effects … on work-life balance are reported by nearly all of the national studies, sometimes even by the same individuals.\u201d[143]<\/a><\/p>\n Some research has found the results of ROWE and NWW initiatives to be positive, and has demonstrated that in the case of structured but flexible work arrangements, detachment from a clear working time and space framework can lead to greater autonomy, enhanced well-being, and a better work-life balance for the employee.[144]<\/a> The ROWE approach can also reduce employee turnover, although it cannot moderate the influence of other variables (such as gender, age, and parenthood).[145]<\/a> Both ROWE and NWW appear as an \u201cextremist\u201d version of telework, which is also associated with preferable schedule arrangements for the employee.[146]<\/a> In this way, even more than with regular formal telework, ROWE and NWW offer the employee flexibility, freedom of movement, and autonomy in the simplest way, without any sort of time restrictions or calculations.<\/p>\n However, other research has demonstrated that detaching work from any time setting, as ROWE and NWW do, also has problematic outcomes for the employee. First, an extremely flexible work schedule may actually disturb<\/em> work-life balance and be less effective for the employee, since the employee is often de facto controlled by the employer in accordance with the employer\u2019s preferences.[147]<\/sup><\/a> Moreover, along with its positive outcomes, many of the negative outcomes of telework elaborated so far are also present in ROWE and NWW, and perhaps even more strongly.[148]<\/a> For instance, some employees feel grateful for the opportunity to work in a flexible arrangement and thus work more to satisfy their manager or colleagues.[149]<\/sup><\/a> Employees without any clear time setting, limitations, or clear guidance may also suffer from significant workloads, task complexity, or a fear of missing out, leading them to work more.[150]<\/sup><\/a> Similarly, studies have shown that NWW leads to an overload of work, especially due to the constant use of emails; this involves pressure to constantly reply to emails and the many unanticipated tasks that they bring.[151]<\/a> As a result, ROWE and NWW initiatives may also damage an employee\u2019s mental and physical health and dignity.[152]<\/a> This outcome is possible since the shift from hours to outcomes forces the employee to work until tasks are accomplished, even if this means that the employee has to work excessive hours each day and during the weekends. This work could be done in a way that negatively influences the employee\u2019s health.[153]<\/a><\/p>\n In this way, in the name of the flexibility and autonomy enabled by ICT, the working day never really ends. It is extended to evenings, weekends, and vacations.[154]<\/a> In the context of management theory, these results are not surprising. What NWW and ROWE actually do is shift overtime costs from the employer to the employee.[155]<\/a> The employee enjoys more autonomy and flexibility, but must in return sacrifice the protection of private time, and in particular, protection of their health, well-being, and dignity.<\/p>\n As demonstrated, the challenges with working time in the digital reality have led to two different responses: enabling an employee\u2019s right to disconnect to protect a distinct concept of working time or avoiding the notion of working time altogether to promote other values. Technology is at the basis of these two responses, whether as a factor that must be controlled and limited due to its problematic implications for employees, or as a positive factor that should be used for the benefit of all parties. However, technology by itself is not necessarily good or bad.[156]<\/a> Technology can be used to increase the benefits to the employer at the expense of the employee\u2019s rights,[157]<\/a> but it can also be used to promote labour rights.[158]<\/a><\/p>\n Thus, I suggest resolving the working time dilemma by using the same technological infrastructure that allegedly created this dilemma in the first place\u2014using the tools of ICT. In other words, in order to ensure effective regulation in the digital reality, the legal framework should use <\/em>the structure of the internet to regulate the working time dilemma, rather than seeking to limit its reach[159]<\/a> To achieve this goal, ICT should be used in the model as a tool to both protect traditional labour rights and enable the new opportunities afforded by the digital reality.<\/p>\n Additionally, regulation should include both mandatory and default arrangements.[160]<\/a> It should combine technological tools with human elements, as embodied in employee representatives. The mandatory arrangements should be legally binding so that their content cannot be changed. The default elements are optional and can be changed, although only after negotiation and agreement between the employer and the employee representatives. Due to the inherent power dynamic in the workplace, especially in cases lacking formal representation of employees (i.e., in a non-unionized workplace), the default elements in the mechanism should be written from a pro-employee perspective.[161]<\/a> They should be modifiable only if there is a detailed policy adapted to the workplace that was drafted and agreed upon in collaboration with employee representatives.<\/p>\n The mix of these two forms of regulation is not new.[162]<\/a> First, as demonstrated earlier, the European models of the right to disconnect are mainly based on collective bargaining and are a matter of negotiation between the employer and the employee representatives, but not all of them have additional binding rules. A more concrete mix of mandatory and default elements was proposed by an ILO report that argued that the question of working time must be regulated by \u201ccollective bargaining, together with legislative provisions.\u201d[163]<\/a> However, as with the European models of the right to disconnect, it is unclear how this combination should be implemented, according to the ILO. A more detailed model for this sort of mixed proposition was made in the broader context of due process in the workplace: Mundlak argued that on some issues, it is useful to turn to \u201cderogation arrangements,\u201d through which the employer and the formal employee representatives can derogate from some of the statutory standards based on negotiation and mutual agreement.[164]<\/a><\/p>\n The mandatory sections that I suggest include basic rules intended to ensure the protection of working time: (almost) every working minute is counted and factored into the employee\u2019s salary and social benefits. Another mandatory rule is that the counting of hours must be transparent and accessible to all relevant parties and can also be used in order to ensure the protection of leisure time. The default arrangements concern the exact value of the different working time units. This entire system is based on and organized by ICT.<\/p>\n The details of my proposed regulations are set out below. As I hope to demonstrate, the proposed model has the potential to provide solutions to some of the deficiencies associated with the right to disconnect and the ROWE and NWW initiatives. The mandatory elements ensure legal protections, through which employees can enjoy the protection of working time with its justifications and purposes. At the same time, the default elements provide the necessary balance with the benefits that ICT has brought to the workplace, such as flexibility and autonomy. The default elements thus enable parties to flexibly adjust the model to each employee and employer in accordance with their specific needs and preferences,[165]<\/a> without sacrificing the employee\u2019s right to be compensated for their actual working hours or their rights to dignity, health, and well-being. Moreover, to cope with the ambiguity of the right to disconnect, the model includes concrete rules that will enable parties to implement this right in a clear way and prevent interpretations that render it meaningless.<\/p>\n Before elaborating on the concrete mandatory and default elements of the proposed model, it is important to clarify the crucial role that employee representatives will play in it. Employee representatives have the ability to work with the employer to adapt the default rules to the specific workplace and its positions. They can ensure that the voices and needs of the employees are an integral part of the process. The employee representatives can also ensure compliance with the agreements and legislated requirements.<\/p>\n In unionized workplaces, it is easy to define the employee representatives, as they are embodied in the trade union.[166]<\/a> The involvement of formal unions in the organization and regulation of telework already takes place in some countries.[167]<\/a> In Canada, unions were an integral part of the governmental consultation on telework (and other required changes to employment standards), and they are supposed to be an integral part of any planning group regarding implementing telework in a workplace.[168]<\/a> In many other countries, unions have taken an active role in initiating and enabling telework in the workplace.[169]<\/a> However, in most countries, including Canada, trade unions do not have any official role in solving the problem of time porosity.[170]<\/a><\/p>\n Moreover, with shrinking trade-union density[171]<\/a> and the difficulties that unions currently face in Canada,[172]<\/a> most workplaces do not have a company-level union and most of the employees are not formally represented by any union.[173]<\/a> According to official statistics, around 30 per cent of Canadian employees were represented by trade unions in 2015.[174]<\/a> Research by the OECD determined similar figures for 2017, with approximately 28 per cent of employees represented by trade unions in Canada.[175]<\/a> These numbers are not high, but they clarify that around a third of Canadian employees have formal representation. The degree of unionization in France and Spain, where employees have a formal right to disconnect that depends on employee representatives, is even lower. In 2015, around 15 per cent of Spanish employees were represented by a formal trade union.[176]<\/a> In France, only around 9 per cent of employees belonged to a union for the same year.[177]<\/a><\/p>\n For cases in which there is no formal body to represent the employees in the workplace, what should the solution be? In these cases, other forms of employee representation are needed to ensure that employees are an integral part of the negotiation process.[178]<\/a> One potential way to ensure this is through workplace health and safety committees or representatives. EU research has found that the question of working time and work-life balance is associated with occupational health and well-being.[179]<\/a> Similarly, in the American context, Secunda argued that the occupational health and safety administration can resolve issues related to employee disconnection from workplace communications due to their explicit influence on the employees\u2019 health and well-being.[180]<\/sup><\/a> Following this trend, occupational health and safety committees in Canada can regulate the issue of remote work and employee disconnection for cases in which there is no formal trade union in the workplace.[181]<\/a><\/p>\n This seems to be a satisfactory solution, since unlike trade unions, many workplaces in Canada must have an occupational health and safety committee or representatives. According to the Canada Labour Code<\/em>, every workplace under federal jurisdiction with at least twenty employees must establish a workplace health and safety committee.[182]<\/a> At the provincial level, there are similar requirements for having health and safety committees for workplaces with more than twenty employees; however, provincial requirements may not be legally binding, and the existence of health and safety committees may depend on requests from employees or the minister of labour.[183]<\/a> At the federal level, the members of the committee are appointed by the employer,[184]<\/a> while at the provincial level, there are often mandatory joint committees of workers and managers.[185]<\/a> Thus, following Secunda\u2019s proposal, for cases in which there is no formal trade union, one possible way to ensure employee representation is through joint health and safety committees.<\/p>\n Finally, if there are no independent and organized representatives for the employees in one form or another, the employer will not be able to modify the default arrangement and must comply with it. Thus, the employer will have an incentive to enable formal and independent representation of the employees, whether through labour unions or otherwise, which can ensure that the employees\u2019 voices are an integral part of the negotiation process.<\/p>\n At the heart of the proposed model\u2019s mandatory elements lies the employer\u2019s obligation to count all actual working time units. The first obstacle to the notion of working time in the digital age is the fact that working time is also spent outside of the official workplace and is often not registered in any formal system.[186]<\/a> As a result, many working hours are not acknowledged or counted into the employee\u2019s formal working time.[187]<\/a> The simplest solution to these unseen and unpaid working hours is to have a rule that orders them to be automatically counted using ICT.<\/p>\n Counting the exact hours that the employee is working is not a new concept. Even before the emergence of ICT, employers have tracked the exact time that employees work by using, for instance, a time clock that employees must sign when entering and leaving the office.[188]<\/sup><\/a> The digital reality has not only changed the time and place of work, but has also dramatically increased the ability to track the exact hours during which the employee is working.[189]<\/a> From a technological perspective, it seems that because telework is by definition based on ICT, the hours during which the employee is conducting telework can be automatically counted using ICT.[190]<\/a> And indeed, there are various programs today that can automatically count and manage the employee\u2019s time.[191]<\/a><\/p>\n Furthermore, an ILO report noted that some countries have already adopted partial arrangements, mandatory or optional, to enable the electronic recording of working schedules conducted outside the workplace and have emphasized the importance of these arrangements.[192]<\/a> The European Court of Justice has also recently clarified that to ensure the protection of the EU Working Time Directive, EU member states must require employers to implement a working time calculation system that can objectively count all of the actual working time of employees.[193]<\/a> These suggestions for arrangements must be made obligatory in Canada to fulfill the basic premise that every working minute is automatically counted. Currently, some Canadian provinces have acknowledged the importance of this obligation. In Ontario, for instance, there is a rule that requires the employer to count all of the actual working hours of the employee.[194]<\/a> In Quebec, the employer is required to provide the employee with a pay sheet that contains information regarding working hours, including overtime work. [195]<\/a> However, the law in Quebec does not indicate the exact way in which the employer should calculate these working hours. Unlike the current labour laws, the proposed obligation demands that every workplace count all of the actual working hours, including outside the office, by using ICT.<\/p>\n The additional hours spent working remotely can be added to the formally recognized working hours in the office. When the work does not have any digital basis (e.g., reading a paper offline at home) or the system is unable to identify and calculate the actual working time for any reason, employees can manually add the extra hours with an explanation of what exactly they were doing and how long each task took. With obligatory automatic calculation of actual working time, the employee, the employee representatives, and the employer should be able to view how many hours the employee has worked in every setting.[196]<\/a> The employee and the employer will consequently be able to recalculate the working schedule for the rest of the month.<\/p>\n Admittedly, this approach may have some problematic repercussions. First, the constant calculation of working hours may invade the employee\u2019s privacy. However, technology can be used not only to count the employee\u2019s total actual working hours, but also to protect the employee\u2019s right to privacy. Thus, the calculation of the remote working hours must be made only after receiving the employee\u2019s consent. In this way, the remote calculation will initially only be exposed to the person who conducts the work from a distance (i.e., the employee). In cases when the program identifies that the employee is conducting work outside of the workplace, during the employee\u2019s supposed leisure time, then the program can, for instance, send the employee a pop-up message, asking them whether they are conducting work and wish to calculate it as working time. If the employee\u2019s answer is positive, then the employer will have access to the specific content in accordance with privacy rules (as the employer does to professional content produced in the workplace during working hours).[197]<\/sup><\/a> To ensure that the employee is aware of this, each time the employee\u2019s answer is positive, the program will automatically, briefly, and clearly notify the employee of the meaning of their consent and of the exact content to which the employer will have access.<\/p>\n Second, some may argue that ICT enables employees to continue working during leisure time, but it also enables them to complete personal tasks during working time (e.g., private emails, Facebook, or personal administrative matters). The sociologist Judy Wajcman has argued in her comprehensive book on time in the modern age that we do not necessarily work more in the digital reality; rather, we may only feel<\/em> as if we are working more because we do not have clear boundaries between work and leisure.[198]<\/sup><\/a> She has defined this phenomenon as being \u201cpressed for time.\u201d[199]<\/sup><\/a> As a result, some employees may feel the need to fill the gap outside the office by continuing to work from home without clearly acknowledging it as working time.[200]<\/sup><\/a> Counting all of this supposedly extra working time from home would impose an unjust economic burden on the employer or, worse, could encourage the employer to abuse their supervisory prerogative and obsessively count every minute of non-work within the workplace, including short pauses to scratch or fidget or for bathroom breaks.[201]<\/a><\/p>\n Nonetheless, as noted above, many studies have convincingly demonstrated that in the digital reality, technology compels people to work for longer hours and not just to blend leisure with work.[202]<\/sup><\/a> Moreover, even when employees blur the distinction between work and leisure without necessarily working any longer, many of their basic rights\u2014for example, to enjoy break time and to enjoy weekends\u2014are disturbed on a daily basis. The employer has the prerogative and the actual means to make sure that the employee is working during formal working time, so the solution of allowing work to be carried out during personal time to balance the use of professional time to conduct personal tasks cannot be justified.[203]<\/a><\/p>\n As for the fear of a niggling calculation and supervision of working time at the office, employers already seem to have the capability\u2014and sometimes the incentive\u2014to count every minute of the employee\u2019s work, and some may already do so.[204]<\/a> The possibility of this undesirable outcome is present in every solution that aims to supervise and restrict working time, including in the right to disconnect model. Yet, due to the problematic outcomes for employee rights in models without time restrictions, setting clear limitations on working time is still worthwhile. If there is a general problem of employers preventing employees from taking breaks for small personal tasks, the employee representatives, for instance, can be utilized to ensure that the employer uses their supervisory prerogative fairly and reasonably, without unnecessarily violating the employee\u2019s right to autonomy and privacy.<\/p>\n After gathering data on the number of hours an employee is working in practice, the next step in calculating the employee\u2019s accurate salary is supposedly quite easy. The salary of the employee should be equal to the number of actual working hours multiplied by payment per hour. However, in many positions, the salary paid is unrelated to how many working hours have been performed in practice. Furthermore, the final calculation includes regular working hours, extra working hours, and time porosity. Each of these time unit types correspond to a different rate of compensation.<\/p>\n In response to these difficulties, the second proposed obligatory rule is that the salary must be paid based on actual working hours. As described previously, the basic rule in Canadian provinces is payment per hour that meets or exceeds the minimum wage and a clear limit to the maximum working hours permissible per day or week.[205]<\/a> A corollary rule concerns the obligation to count all actual working hours of the employee.[206]<\/a> Thus, in principle, this second suggested obligatory rule is already part of Canadian legal norms. However, there are many workplaces in Canada today that pay salaries unrelated to the actual working hours of the employee, and there are many concrete rules that enable this kind of payment, along with deviation from the maximum permissible working hours per day or week, and exemptions from the obligation to record all actual working hours of an employee.[207]<\/a><\/p>\n The studies presented throughout this article on the wide scope of unpaid and undefined working hours lead to the conclusion that the concepts of payment-per-working hour and clear boundaries between work and leisure have become overlooked in today\u2019s world. This phenomenon has negative implications for employee rights.[208]<\/a> Thus, I suggest requiring the employer to calculate and pay for every minute of an employee\u2019s actual work.<\/p>\n The next step is to calculate the exact compensation for each type of working time unit. Here, it seems reasonable to apply a default arrangement, as there may be many differences between workplaces and positions in terms of the influence of telework on working time and rest time, so it would be problematic to impose the same strict rules on all the diverse forms of telework.[209]<\/a><\/p>\n The basic rule in this regard is that the employee is entitled to receive payment for each day of work, which should be similar in length to the regular working day as it is determined by employment standards legislation in the applicable province of Canada.[210]<\/a> In addition, the employee is owed overtime payment for each extra working hour per day.[211]<\/a> Thus, the default rule should be overtime payment calculated on a daily basis.[212]<\/a> This default rule should also be applied in provinces in which the current basic rule is overtime payment on a weekly basis,[213]<\/a> so that the employee or employee representatives will have a better starting point from which to negotiate. On this basis, compensation can take other forms more suitable to the concrete workplace following agreement with the employee representatives or the employee (or with the assistance of the occupational health and safety committee).[214]<\/a> For example, other forms can include decreasing the number of working hours of the employee on the following day or allowing more vacation days equal to the actual extra working hours.[215]<\/a> In cases of disagreement on the alternative form of compensation, the default becomes the mandatory rule.<\/p>\n Due to its unique nature, time porosity should be valued differently. The first hurdle before we can determine the value of time porosity is to identify and distinguish time porosity from the aforementioned \u201cpure\u201d working time units (whether basic or overtime). Unlike regular working hours, time porosity is ad hoc in its nature, usually short in duration, and interspersed throughout the leisure time of the employee, including weekends, holidays, and before and after regular working hours.[216]<\/a> Thus, the program that automatically counts all working time units should be designed to identify and mark these short periods of work that last for concrete durations during the employee\u2019s free time.[217]<\/a> Here again, in cases when the program fails to identify time porosity, the employee should be able to manually add it to the final calculation.<\/p>\n Next, we need to determine the value of time porosity. On the one hand, it seems reasonable that time porosity should be valued similarly to regular working time. If the employee has conducted work for concrete periods during leisure time, there should be compensation for this time as there would be for any regular working time. Time porosity is not pure working time that is devoted solely to work,[218]<\/a> but because the concrete minutes ultimately counted were devoted to work (otherwise, the program would not have identified them as working time), it makes sense to compensate the employee for them as regular working time.[219]<\/a> However, this solution may lead to absurd results. Davidov discusses the similar concept of being \u201con call,\u201d and argues that employees who are on call should not be compensated only for the exact minutes in which they had to work, since this may violate the purposes of a minimum wage.[220]<\/a> For instance, the employee can be on call during a night shift and answer only four phone calls during the night, each lasting only two minutes. Does it make sense to compensate the employee for only eight minutes of working time,[221]<\/a> or should we compensate them at a higher rate that also takes into account the time they were potentially available to the employer and could not do whatever they wished?[222]<\/a> Since the employee was available to the employer throughout the night shift, the employee should be compensated at a higher rate than for only eight \u201cpure\u201d minutes of working time.<\/p>\n Being on call is not identical to conducting time-porous work. When employees are on call, they are explicitly supposed to be available to work during this time.[223]<\/a> However, there are obvious similarities. The notion of time porosity arose from the fact that in the digital reality, the employee is implicitly<\/em> required to be available to work and to continuously answer emails, phone calls, and WhatsApp messages during leisure time.[224]<\/a> Furthermore, time porosity seems to have a greater influence on the well-being and health of employees, who cannot enjoy pure break time during which they are completely unavailable.[225]<\/a> Employees from around the world describe how the habit of working outside of the workplace without any clear boundaries influences their ability to enjoy family life and actual rest time.[226]<\/a> Bearing in mind the influence of time porosity on the employee, and to deter the employer from encouraging these practices, it would be justified to compensate the employee at a higher rate for time porosity in general rather than for the exact minutes spent on a task.<\/p>\n Hence, compensation for time porosity should be determined by default rules that favour the employee and should be assigned a higher value than the basic working time unit (i.e., more than the regular payment per hour). For instance, the basic provincial rule could be that working during time porosity is compensated by twice and half the basic working time unit (a rate of 250 per cent).[227]<\/a> However, the value of this time porosity can vary from one case to another and should be determined with the employee representatives or the employee (or with the assistance of the occupational health and safety committee) in a deliberate manner, taking into consideration the uniqueness of the workplace and the position of the employee performing time-porous work.[228]<\/a> Another relevant consideration is the nature of time porosity in a particular position, including its frequency, duration, and intensity.[229]<\/a> Based on these factors, the employee representatives or the employee and the employer are best positioned to determine the real value of time porosity and to reach a more nuanced and suitable agreement than the general default rule. Again, in cases of disagreement, the default rule should be mandatory.<\/p>\n Along with the calculation and payment of all the actual working time units of the employee, it is important to clarify that the model does not suggest that the idea of rest time should be eliminated as long as the employee is compensated for the work conducted during supposed rest time. The opposite is true. As has been clarified throughout this article, genuine rest time is important for the employee\u2019s health and well-being and is an integral part of the employee\u2019s dignity.[230]<\/a> Thus, the idea of rest time that is separated from work time should also be preserved in the proposed model.<\/p>\n However, compared to the suggestions regarding working time calculation, here the optional contribution of the model to the current legal framework is more modest and limited. As previous research has shown, the most effective way to change the problematic habit of constant remote work is to change the work culture and norms.[231]<\/a> This, however, is something that the model cannot do. An electronic system can, of course, totally prevent the employee\u2019s ability to conduct work outside of the office or during what seems to be rest time.[232]<\/a> However, this will also disable the employee\u2019s ability to enjoy a flexible work schedule and to have their preferred work-life balance, adjusted to their own needs or familial obligations.[233]<\/a> In other words, it can prevent the employee from enjoying the opportunities that the digital age has provided.<\/p>\n Thus, the benefit of the proposed model regarding the question of rest time is that the constant calculation of working time can make work during rest time more transparent to the relevant parties and economically unviable for the employer. Since the model is based on the automatic calculation of all the actual working time units of the employee, it exposes all the exact working time units the employee has conducted during their supposed leisure time. This sort of explicit and detailed exposure can enable the parties to understand the real implications of remote work on the idea of rest time, as well as the gap between the legal framework in this regard and the actual reality. This can serve as an important and perhaps essential stage in the educational process of changing the work culture in the workplace, since it stops the prosaicism, casualness, and lack of transparency of work during time porosity.[234]<\/a> In addition, this sort of exposure can serve as legal evidence in the event of an employee\u2019s future lawsuit brought against their employer for violating their right to rest, thus deterring the employer from encouraging work during time porosity. Similarly, since work during time porosity costs employers much more than work conducted during basic working hours, the employer will have the economic incentive to minimize it as much as possible. In this way, the model also seems to have positive implications for the idea of rest time, even if in a limited and indirect manner.<\/p>\n The digital reality, and ICT in particular, has changed the concept of working time. As the ESDC report emphasizes, the ability to work from a distance has challenged the classical boundaries between work and leisure. However, as presented throughout this article, ESDC\u2019s suggestion to embrace a Canadian version of the right to disconnect suffers from deficiencies and may be insufficient. The digital reality has indeed challenged the classical purposes of working time regulation, but it has also introduced many new positive contributions to the labour field that are worth preserving, such as increased flexibility and autonomy.<\/p>\n These contradictory trends and the two conflicting models developed to resolve the modern working time dilemma\u2014having strict working time limitations or avoiding them and switching to other payment models\u2014prompt us to look for a third solution, which combines legal protections with values associated with the digital reality. This article has proposed such a model, which includes both mandatory and default elements.<\/p>\n At the heart of the model is the mandatory rule to use ICT to count every actual working time unit. Thus, this model uses technology not only as a means to conduct work but also as a regulation tool. The value of the extra working time units\u2014overtime and time porosity\u2014is an issue to be negotiated between the employer, the employee, and the employee representatives (or with the assistance of occupational health and safety committees) and it can be adjusted to reflect the needs of specific positions and workplaces. This model also contributes to the employee\u2019s right to enjoy genuine leisure time, since it makes clear to all the parties how much time an employee has actually devoted to work in every month, including during supposed leisure time.<\/p>\n Unlike the right to disconnect as it is currently understood, the proposed model contains specific rules intended to avoid ambiguity and enables more flexibility and autonomy for both the employee and the employer through its default sections. Meanwhile, unlike the management models that have moved away from time measurement to performance or outcome measurement, the proposed model, through its mandatory elements, ensures the protection of the employee\u2019s health, well-being, and dignity.<\/p>\n The proposed model has its shortcomings. It requires the employee representatives to play a significant role, which may not always be realistic in practice. Moreover, the model assumes a constant dialogue between the parties, which may lead to complications and a prolonged regulation process. However, it also offers a new way to view the working time dilemma and to engage with current difficulties in a nuanced manner that takes into account the employee\u2019s and the employer\u2019s needs and perspectives, as well as the new opportunities offered by the digital reality.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/u><\/p>\n [1]<\/a> \u00a0\u00a0\u00a0 See Employment and Social Development Canada, What We Heard: Modernizing Federal Labour Standards<\/em> (Report) (Ottawa: ESDC, August 2018), online (pdf): <www. [2]<\/a> \u00a0\u00a0\u00a0 See ibid<\/em> at 10\u201311.<\/p>\n [3]<\/a> \u00a0\u00a0\u00a0 Ibid <\/em>at 10.<\/p>\n [4]<\/a> \u00a0\u00a0\u00a0 On the right to disconnect, see Part IIIA, \u201cThe Right to Disconnect\u201d, below<\/em>. A similar survey conducted by the European Trade Union Confederation (ETUC) showed that \u201cno other issue gained more attention and replies from trade union and company workers representatives than working time\u201d: see Eckhard Voss & Hannah Riede, \u201cDigitalisation and Workers Participation: What Trade Unions, Company Level Workers and Online Platform Workers in Europe Think\u201d (September 2018) at 29, online (pdf): ETUC<\/em> <www.etuc.org> [perma.cc\/K6CT-5H9Y].<\/p>\n [5]<\/a> \u00a0\u00a0\u00a0 For reports on the government\u2019s plans, see Jordan Press, \u201cShould Canadian Workers Have the \u2018Right to Disconnect\u2019? Question Studied as Liberals Plan Labour Code Rewrite\u201d, Global News <\/em>(3 September 2018), online: <globalnews.ca> [perma.cc\/WU8C-2LPY]; Marc Montgomery, \u201cThe \u2018Right to Disconnect\u2019: Canadian Government Studies New Policy\u201d, Radio Canada International<\/em> (4 September 2018), online: <www.rcinet.ca> [perma.cc\/JNU4-DBEF]. See also Employment and Social Development Canada, Disconnecting from Work-Related E-Communications Outside of Work Hours<\/em>, by the Secretariat to the Expert Panel on Modern Federal Labour Standards (Issue Paper) (Ottawa: ESDC, January 2019), online (pdf): <www.canada.ca> [perma.cc\/DL2P-CTGX]. Note also that in Quebec, a bill on the right to disconnect was proposed in March 2018: Bill 1097, Right-to-Disconnect Act<\/em>, 1st Sess, 42nd Leg, Quebec, 2018 (presented 22 March 2018).<\/p>\n [6]<\/a> \u00a0\u00a0\u00a0 See Voss & Riede, supra<\/em> note\u00a04 at\u00a029.<\/p>\n [7]<\/a> \u00a0\u00a0\u00a0 See e.g. Harry W Arthurs, \u201cThe Transformation of Work, the Disappearance of \u2018Workers\u2019, and the Future of Workplace Regulation\u201d (2009) Osgoode Hall Law School of York University Working Paper\u00a0No 4, online (pdf): <digitalcommons.osgoode.yorku.ca> [perma.cc\/ [8]<\/a> \u00a0\u00a0\u00a0 International Labour Office, General Survey Concerning Working-Time Instruments: Ensuring Decent Working Time for the Future<\/em>, Report III(B), 107th Sess (2018) at\u00a0267, online (pdf): <www.ilo.org<\/a>> [perma.cc\/393L-YGHX] [ILO, General Survey<\/em>].<\/p>\n [9]<\/a> \u00a0\u00a0\u00a0 In Ontario, see Employment Standards Act<\/em>, 2000<\/em>, SO\u00a02000, c\u00a041, s\u00a023.1(1) [Employment Act<\/em>]. In Quebec, see Act respecting labour standards<\/em>, CQLR c\u00a0N-1.1, s\u00a089(1) [Labour Standards<\/em>] (note that the Quebec law explicitly enables payments based on output instead of time).<\/p>\n [10]<\/a> \u00a0\u00a0 See e.g. Employment Act<\/em>, supra <\/em>note\u00a09, s\u00a020(1); Labour Standards<\/em>, supra <\/em>note\u00a09, s\u00a079.<\/p>\n<\/a><\/a><\/a>I.\u00a0 Time in Labour Law<\/h1>\n
<\/a><\/a><\/a>II. Time and the Digital RealityThe Case of ICT and Telework<\/h1>\n
<\/a><\/a>A.\u00a0 Formal Telework<\/h2>\n
1.\u00a0\u00a0\u00a0 Meaning and Scope<\/h3>\n
2.\u00a0\u00a0\u00a0 The Implications of Formal Telework for the Notion of Working Time<\/h3>\n
B.\u00a0 <\/a><\/a><\/a>Sporadic Working Hours and Being Constantly Online for Work<\/h2>\n
1.\u00a0\u00a0\u00a0 On the Third Generation of Telework, Time Porosity, and \u201cW-est\u201d<\/h3>\n
2.\u00a0\u00a0\u00a0 The Implications of Time Porosity for the Notion of Working Time<\/h3>\n
<\/a><\/a><\/a>III. Regulation of the Telework Dilemma: Between Two Ends<\/h1>\n
<\/a>A.\u00a0 The Right to Disconnect<\/h2>\n
<\/a><\/a><\/a>B.\u00a0 Avoiding Time Calculation and Shifting to Other Forms of Payment<\/h2>\n
<\/a><\/a><\/a>IV. Turning to a Third Form of Regulation<\/h1>\n
<\/a><\/a><\/a>A.\u00a0 How Should We Devise Regulation in the Digital Reality?<\/h2>\n
B.\u00a0 <\/a>The Role of the Employee Representatives<\/h2>\n
C.\u00a0 <\/a>The Proposed Model<\/h2>\n
<\/a><\/a><\/a><\/a><\/a>1.\u00a0\u00a0\u00a0 Everything Counts, Everything Is Transparent<\/h3>\n
<\/a><\/a><\/a>2.\u00a0\u00a0\u00a0 Estimating the Working Time<\/h3>\n
a.\u00a0\u00a0\u00a0 Time Porosity<\/h4>\n
3.\u00a0\u00a0\u00a0 <\/a><\/a>The Right to Have a Break: Where Do We Go from Here?<\/h3>\n
<\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a>Conclusion<\/h1>\n
\ncanada.ca> [perma.cc\/Y9K7-J9WV].<\/p>\n
\nY98F-TWXW] (demonstrating how the notion of work has changed in the modern age and the ways in which the modern workplace has become more technological and flexible).<\/p>\n