In September, Chile became the first country in Latin America and the Caribbean to enact a new regulatory framework to regulate the new forms of work linked to digital platforms.
Law No. 21,431, published on March 11, 2022, has come into force as of September 1, 2022.
The new legislation introduces a chapter on platform work within Chile’s Labor Code.
The definition of "digital service platform companies" includes delivery of goods and small passenger transport, and excludes platforms that act as digital marketplaces.
The new regime distinguishes two types of platform workers:
- dependent platform workers who will have employee status
- independent platform workers who will remain independent contractors but will be granted certain protections on matters like working time, pay, and discrimination.
The digital platform worker is considered a dependent worker or independent worker, depending on whether or not the requirements of the individual employment contract, established in article 7 of the LC, are met. To distinguish between these two types of workers,the draft law resorts to the general principles set out in articles 7 and 8 of the Labour Code, i.e., the existence of subordinate, dependent and employed work.
1. Regulation applicable to dependent platform workers
Dependent workers are governed by the general regulations of the Labor Code, to the extent that they do not contravene the special provisions introduced by this law.
- The worker will be at the company's disposal from the moment it "connects to the digital infrastructure and until he or she voluntarily disconnects".
- The "passive" working time figure is also considered as working time (albeit with reduced pay).
- Workers who choose to freely distribute their working hours may agree on a remuneration system per unit of time (e.g., per hour) or through a percentage of the tariff charged to users (or some similar mechanism).
2. Regulation applicable to independent platform workers
The independent category applies to situations in which the platform’s role is merely to coordinate the contact between the independent platform worker and the platform’s users, even if the platform establishes general terms and conditions to allow persons to work using the company’s technological infrastructure.
- Companies must communicate in writing the termination of the contract to the independent worker in certain cases, at least thirty days in advance.
- It creates an obligation for platform companies to enforce a minimum “disconnection time” of twelve hours within every twenty-four hours.
- Norms relating to the protection of workers' fundamental rights apply to these independent providers.
However, only independent workers that have worked for an average of 30 hours per week in the last three months will be able to access this procedure.
3.Regulation applicable to both dependent and independent platform workers
- Companies must inform workers about the place where they are to be performed, the identity of the user, and the means of payment to be used.
- The new legislation establishes a right to access the personal data that the company holds, particularly those related to their rating and performance, as well as a right to data portability.
- Companies must uphold equality and non-discrimination in implementing their algorithms.
- Companies must provide adequate health and safety training, provide certain protective elements set out in the standard, and take out damage insurance for personal property used by the
worker in the provision of services. - Companies must obtain insurance on the workers’ personal items
The new legislation establishes the right of both dependent and independent platform workers to organize in trade unions and bargain collectively with their employers. Unions representing dependent or independent platform workers will be able to bargain with their employers within the rules of the so-called “unregulated” procedure, which includes only basic rules and gives flexibility to the parties to conduct the negotiations. It does not include the norms that make it possible to strike nor the protections against dismissal applicable in the general “regulated” procedure.
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