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A practical guide to teleworking in Argentina

by | Mar 24, 2021

This practical guide to teleworking in Argentina will address the main issues of the legal regime of telework established by Law No. 27,555 (Ley de Teletrabajo, the LT)[1], and its Regulatory Decree No. 27/2021 (Decreto Reglamentario de Teletrabajo, the DRT)[2], becoming effective on April 1, 2021[3].

The regulation of teleworking in Argentina has been made through the introduction of a new contractual modality in Article 102 bis of the Labor Contract Law No. 20,744 (Ley de Contrato de Trabajo, the LCT), and the specific rules of the LT and the DRT[4].

The practical guide to teleworking in Argentina will not cover all aspects arising from the telework contract but, as already said, its main issues, all set out in a table and with some brief comments, to be a quick reference material.

Definition of teleworkingLCT: Services rendered totally or partially at the address of the employee, or in places other than the employer’s facilities, through the use of information and communication technologies (Article 102 bis of the LCT).

DRT: establishes that the LT will not apply when:

(i) the employees work at the establishments, dependencies, or branches of the clients to whom the employer provides services on a continuous or regular basis; or

(ii) in cases in which the work is performed sporadically and occasionally at the employee´s address, either at the request of the employee or due to exceptional circumstances (DRT, article 1).

Comment

The aforementioned exceptions to the definition of teleworking should have been introduced by the LT and not by the DRT since the latter thus changes the nature of the legal definition. In addition, we wonder what the situation would be when a client of the employer allows the employees to work from outside its facility: will it be possible to exclude from the legal regime of teleworking to these employees who provide services for a third party although from their own homes just because such services benefit a regular client of their employers?

Both in the case of points (i) and (ii) the references to “… services on a continuous or regular basis” (i), or “… to cases in which the work is performed sporadically and occasionally at the address of the person working …” are vague and a source of uncertainty.

Same rights than employees working on-siteLT: Teleworkers shall enjoy the same rights and obligations as the employees working on-site, and their salaries may not be lower (LT, Article 3).
Workweek

 

LT: The working week must be previously agreed upon in writing, respecting the legal and conventional limits in force.

The platforms and/or software used by the employer for the specific purposes of teleworking must prevent the connection outside the work shift. They must be registered with the Ministry of Labor (LT, article 4).

Digital disconnectionLT: The person who teleworks shall have the right not to be contacted and to disconnect from digital devices and/or information and communication technologies, outside working hours and during leave periods.

The employer may not send communications, by any means, beyond the working day (LT, Article 5).

DRT: Incentives conditioned to the non-exercise of the right to disconnection may not be established.

As exceptions, the sending of communications beyond working hours is allowed when:

(i) the company’s activity is carried out in different time zones; or.

(ii) in cases where it is indispensable for some objective reason.

Even when some of the exceptions take place, the teleworker will not be obliged to respond until the beginning of his/her next working shift, except in cases of danger, or accident occurred, or imminent force majeure, or by exceptional requirements of the company (DRT, article 5).

Comment

The DRT seems to exceed its regulatory nature, introducing exceptions not contemplated in the categorical legal text. In addition, the vagueness implied by the reference to “objective reason” will surely produce differences of interpretation.

Needless to say that the connection beyond the normal working day will be allowed in the case that the teleworker works overtime and is paid for it.

People careLT: The teleworkers who are in charge, in a unique or shared way, of the care of certain people, will have the right to working schedules compatible with the caring tasks, and/or to interrupt the working day.

The persons who grant the teleworker the aforementioned rights are:

(i) minors under thirteen years of age;

(ii) disabled persons; and

(iii) elderly adults who live with the teleworker and require specific assistance (LT, article 6).

DRT: The teleworker who exercises the right to interrupt the task for care reasons must communicate virtually and precisely the time when the inactivity begins and ends.

In the cases in which the tasks of care do not allow to fulfill the legal or conventional working time, its reduction may be agreed upon according to the conditions that are established in the collective bargaining agreement.

Incentives conditioned to the non-exercise of the right to care may not be established (DRT, article 6).

Comment

The legal regime of telework grants to teleworkers greater rights than those of on-site employees. It will be interesting to know how the issue will be solved when a face-to-face worker who must take care of people requests to switch to telework mode to enjoy the greater rights that the legal regime of telework grants, and if the hypothetical refusal – when there is no reason in the organization and management of the tasks that would prevent consenting to the request – could be considered discrimination.

When an interruption occurs, nothing is clarified if after the interruption the worker must continue working until completing the agreed working day, or if the interruption period is part of the work shift (in the latter case there remains the doubt about what would happen with the collection of the salary).

When caring for people does not allow the legal or conventional working day to be complied with, the DRT only regulates as a solution the reduction of the working schedule, which must always be agreed upon under the conditions established by collective bargaining. There is no provision for compensation of hours, or systems of flexible working hours, averages, or hour banks, which could be contemplated by collective bargaining agreements[5]. Nor is it resolved what will happen if collective bargaining agreements do not establish anything on this point and if in that case the reduction of hours may be determined in the individual contract.

As it is a constant in all the legal regime of telework, nothing is said about the employees out of the scope of collective bargaining agreements.

Change from on-site to teleworking services.

Reversibility

LT: The employee´s change from on-site to teleworking services, except in cases of force majeure duly evidenced, must be voluntary and implemented in writing (LT, article 7).

The consent given by the person working in a face-to-face position to move to telework may be revoked at any time (reversibility).

In such a case, the employer must grant him/her tasks in the facility in which he/she had previously worked or failing that, in the nearest to the employee´s address. Unless it is impossible to comply with such duty for justified reasons.

Failure to comply with this obligation will be considered a violation of the employer’s duty to provide employment, as provided in Article 78 of the LCT, and will entitle the teleworker to consider himself/herself in a situation of dismissal, or to file a legal claim for the reestablishment of the face–to–face working conditions (LT, Article 8).

DRT: The right to reversibility and compliance with the resulting obligation must follow the duties of good faith and regular exercise of rights imposed in articles 9 and 10 of the National Civil and Commercial Code, and of collaboration, solidarity, and good faith of articles 62 and 63 of the LCT.

Upon receipt of the employee´s request to move to on-site working, grounded on a reasonable and supervening motivation, the employer must comply with its obligation in the shortest time allowed by the situation of the premise or premises at the time of the request. In no case may such period exceed thirty days.

To assess the impossibility of complying with this obligation, the time elapsed since the moment in which the change from the face-to-face mode to the teleworking mode was arranged shall be specially taken into account.

Comment

The power of the worker to revoke his/her consent, at any time, without an expiration date and no matter how long he/she has teleworked, looks excessive.

It is not regulated what the effect of the impossibility of the employer to comply with the obligation is, but the same should not allow the worker to be placed in a situation of dismissal.

The DRT tries to limit the employee’s power by requiring the invocation of a reasonable and supervening motivation, in a new over regulation of the legal rule that grants reversibility without restrictions.

It has been left out of the legal regime of teleworking the employer’s power to revert it to face-to-face work. We wonder what would happen if such power is reserved by the employer, in a clear and precise manner, in the telework contract, providing for adequate prior notice. And even more, if the change is ratified later by the worker in an agreement of modification of working hours when it occurs, and the return to on-site work extends in time without claims[6].

Teleworking from the beginning of the labor relationshipLT: In employment contracts whereby teleworking is agreed upon at the beginning of the relationship, the change to face-to-face services will operate according to the guidelines established in the collective bargaining (LT, article 8).

DRT: Workers who consent to telework from the beginning of the employment relationship may not revoke their consent or exercise the right to be granted face-to-face tasks, except as provided in the collective agreements or individual contracts (article 8).

Comment

Once again, a bad legislative technique is shown, since the legal provision is imprecise and does not prohibit the revocation of consent, but submits it in its execution to the regulation made by the collective bargaining agreements. The DRT tries to fix the technical poverty of the legislator and says what the LT should have said, although it does not avoid the possibility of conflicts.

Working elementsLT: The employer must provide the equipment -hardware and software-, work tools and the necessary support for the performance of the tasks, and assume the costs of installation, maintenance, and repair of the same.

In case it is agreed that the teleworker provides his /her working tools, he/she will be entitled to compensation for the use of such tools. The compensation will operate according to the guidelines established in the collective negotiation.

The person who works will be responsible for the correct use and maintenance of the elements and tools of work provided by his/her employer, and will have to try that these are not used by persons not related to the relation or contract of employment.

In no case shall the teleworker be liable for normal wear and tear resulting from the usage or the passage of time.

In case of damage, breakage, or wear in the elements, instruments, and/or technological means that prevent the performance of tasks, the employer shall provide for their replacement or repair to enable the performance of tasks. The time required to comply with this employer’s obligation will not affect the right of the worker to continue receiving the usual remuneration (LT: article 9).

DRT: The provision of work elements is not considered as remuneration and, consequently, it is not included in the remuneration basis for the computation of any item arising from the employment contract, or union or social security contributions.

The parties may agree on the guidelines for its determination in those cases in which the relationship is not covered by the scope of application of a collective bargaining agreement (DRT, article 9).

Comment

A doubt could remain as to the remunerative nature of the work tools provided by the employer if the worker is allowed to use them for personal purposes. Therefore, the employer may establish a policy for the use of work tools provided to its employees, which regulates in detail and with precision the uses that may be made of them, prohibiting, for example, any use for reasons unrelated to work, during or beyond the working day.

Compensation of expensesLT: The person who works under the modality of teleworking shall be entitled to compensation for the higher expenses in connectivity and/or consumption of services to be supported. Such compensation will operate according to the guidelines established in the collective bargaining and will be exempt from income tax (LT, article 10).

DRT: The compensation of expenses, even without receipts, is not considered as salary (DRT, article 10).

Comment

Nothing is said about the proportion in which expenses must be compensated.

Hygiene and safety at workLT: The authority of application will dictate the norms related to hygiene and safety at work to provide adequate protection to those who work under the labor modality of teleworking.

Also, the authority of application will determine the inclusion of the diseases caused by this labor modality within the list foreseen in article 6°, paragraph 2, of the law 24,557.

The accidents that occurred in the place, day, and on the occasion of telework, are presumed accidents in the terms of article 6°, paragraph 1, of the law 24,557 (LT, article 14).

DRT: The Ministry of Labor, Employment and Social Security, as enforcement authority, through the Superintendence of Labor Risks, shall prepare a study on the conditions of hygiene and safety applicable and the possible need to incorporate to the list provided for in Article 6°, paragraph 2 of Law No. 24,557 and its amendments, occupational diseases related to the labor modality of teleworking.

Control of the teleworker.

Right to privacy

LT: The control systems for the protection of property and information owned by the employer must have union participation to safeguard the privacy of the person working under the modality of teleworking and the privacy of his/her home (LT, Article 15).

DRT: The employer cannot make use of surveillance software that violates the privacy of the teleworker (DRT, article 16).

Comment

As long as the employer provides the work tools and establishes in a written policy that they may only be used for work purposes, prohibiting any use for personal reasons, software for monitoring the worker’s activity may be installed and used, as long as such systems do not violate his/her privacy (monitoring applications could not, for example, access the camera of the computers used by the worker to view his/her home, nor make use of the microphone to listen to his/her environment except for a virtual meeting for work purposes). Naturally, the existence of such surveillance software and its scope must be adequately disclosed to the employee beforehand.

In our opinion, software or monitoring devices are forbidden when the worker uses his/her equipment for teleworking.

Registration and control of teleworkingLT: The Ministry of Labor, Employment and Social Security of the Nation will register the companies that employ teleworkers, accrediting the software or platform to be used and the list of the persons that develop these tasks, which must be informed before each registration or on a monthly basis. This information must be sent to the relevant trade union organization (LT, article 18).

DRT: The trade union organization, within its scope of representation, shall only receive information corresponding to the payroll of the persons performing the tasks, the enrollments and terminations. This limitation does not apply to the obligations contained in Title II, Chapter IV of Law No. 25,877, as amended (DRT, Article 18).

The legal regime of teleworking is very vague, exhibiting a notorious lack of legislative technique, ignorance – perhaps the product of unnecessary haste, especially when it will only come into force much later of its enactment -, and abscence of adequate consultation and consideration of all interests at stake. The permanent delegation of regulations to collective bargaining, besides being unnecessary because collective agreements can always establish working conditions as long as they improve the legal provisions, is another example of idleness, precariousness, and unintelligible hurry of the legislator in sanctioning the legal regime of teleworking, thus dissociating itself from issues that minimally could have been regulated.

The regulation of the legal regime of teleworking, with eagerness to improve and correct its shortcomings, exceeds and modifies the letter and spirit of the law in many respects.

All of which leaves open the possibility of the emergence of disputes, in a modality of services that for many years had been taken place in the labor market without conflict[7], which is worrying given the dramatic increase in teleworking services as a result of the pandemic of Covid-19.

Mario E. Castro Sammartino

[1] http://servicios.infoleg.gob.ar/infolegInternet/anexos/340000-344999/341093/norma.htm

[2] http://servicios.infoleg.gob.ar/infolegInternet/anexos/345000-349999/346325/norma.htm

[3] http://servicios.infoleg.gob.ar/infolegInternet/anexos/345000-349999/346797/norma.htm

[4] Besides, Resolution No. 1552/2012 of the Superintendency of Labor Risks (http://servicios.infoleg.gob.ar/infolegInternet/anexos/200000-204999/204726/norma.htm) applies to teleworking, establishing that companies must furnish the employees with an ergonomic chair, a portable fire extinguisher (1 kg. Fire extinguisher based on HCFC 123), a first aid kit, a mouse pad, and a Handbook of Good Health and Safety Practices in Telework.

[5] Article 198 of the LCT provides that collective bargaining agreements may establish methods for calculating the maximum workday on an average basis, according to the characteristics of the activity, all of which has given rise to collective bargaining agreements with the average workday and bank of hours system.

[6] In a case that may serve as an analogy and that dealt with the change of workplace and rotation among branches, the case law has ruled that “… the circumstance that the defendant implements a policy of rotation of its personnel among its various branches located within the limits of the Autonomous City of Buenos Aires to make up for staff absences and that this was sufficiently notified in advance and that the time it took to travel from one branch to another was approximately half an hour by public transportation. Furthermore, it is not a disputed fact in the case that since the beginning of the employment relationship, Rodriguez worked in several branches of the defendant, performing tasks as a saleswoman. In sum, the existence of a functional reason for the change ordered by the defendant is proven in the case. Within this scheme, it appears reasonable and falls within the employer’s powers of organization and management in the terms provided by sections 64 and 65 of the LCT without the evidence of the case showing the existence of damages to the worker, which I find has not occurred (cfr. National Labor Court of Appeals, Chamber V, in re Rodriguez, Maite Barbara v. Calzarte S.R.L. s/despido”. 11/30/2020).

[7] With the exception perhaps of the claims for compensation of the so-called “passive guards”, an issue that has no direct and necessary relationship with teleworkers and that was not addressed by the legal regime of teleworking.

For additional information on these or any other issues related to doing business in Argentina, please, sign up for our Legal Blog or contact us at any time. Our publications exclusively express the author´s opinion and do not purport to be legal counsel on any case. Should you need it, you must consult with your trusted lawyer.

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