The situation experienced by the Coronavirus during the last months has meant changes in the way we relate and live. And, without a doubt, one of the most notorious changes we have seen is in the labour market and in the way workers carried out their daily tasks, before on-site and now, all those who have the possibility and the means, remotely. That is why many governments are currently studying and regulating the modality of teleworking.
In the specific case of Argentina, the Chamber of Deputies of the Nation has given half a sanction (pending the vote by the Senate) to the law that intends to regulate the modality of the work contract known as telework.
Definition and guarantees for teleworkers
In this section, telework is defined as “the performance of acts, works or services, carried out in whole or in part at the home of the person working, or at places other than the establishment or establishments of the employer, through the use of information and communication technologies”.
In addition, the project seeks to ensure that teleworkers enjoy “the same rights and obligations as people working in the face-to-face mode and their remuneration may not be less than that which they received or would receive under the face-to-face mode”.
The initiative will not be a particular statute, but the modality will be incorporated into the law of the employment contract, with the addition of article 102 bis.
Working hours and the right to digital switch-off
As for working hours, it is established that they must be agreed in writing “in accordance with the legal and conventional limits in force, both with regard to what is agreed by hour and by objectives”.
At this point, it is important to highlight the introduction of the “right to digital disconnection”, i.e. the right of the teleworker not to be contacted and to disconnect from digital devices and/or information and communication technologies, outside working hours and during periods of leave
Compatibility of tasks or suspension of the working day for the care of dependants
Another novelty is the introduction of so-called “care tasks”. According to the legislative proposal, teleworkers who can prove that they are responsible, on a single or shared basis, for the care of children under 13 years of age, people with disabilities or older adults who require specific assistance, will be entitled to schedules compatible with the care tasks they are responsible for and/or to interrupt the working day.
If the employer in any way prevents or hinders this right, it shall be presumed to be an act of discrimination.
Transfer from face-to-face mode to remote work
Another point of the initiative to be highlighted is the requirement for the transfer of a person who performs face-to-face tasks to the telework modality; in this sense, the project indicates that, except for force majeure, the transfer must be voluntary and provided in writing.
Furthermore, this consent given by the worker may be revoked at any time during the relationship. In such case, the employer must grant tasks in the establishment where he or she had previously performed them or, in the absence thereof, in the establishment closest to the employee’s home.
It is important to mention that the draft expressly provides that failure to comply with this obligation will be considered a violation of the duty of occupation (Article 78 of the LCT), and will entitle the worker to consider himself in a situation of dismissal or to take action for the reestablishment of the conditions that have been duly modified.
Equipment and compensation of expenses
With regard to the provision of equipment (hardware and software), work tools and support necessary for the performance of tasks, it is established that it will be the duty of the employer, who must also assume the costs of installation, maintenance and repair thereof, or compensation for the use of tools belonging to the person working.
On the other hand, teleworkers will also be entitled to compensation for increased expenses in connectivity and/or consumption of services that they have to face.
In relation to the protection of the tools and information owned by the employer, it is provided that the control systems must have union participation, in order to safeguard the privacy of the person working under the telework modality and the privacy of his or her home.
The employer may not use surveillance software that violates the privacy of the teleworker, ensuring the protection of data used and processed by the teleworker for professional purposes.
Accidents at work and occupational hygiene and safety
The project establishes that accidents occurring in the place, during the day and on the occasion of teleworking will be presumed to be occupational accidents.
On the other hand, it delegates to the Authority the dictation of norms related to the security and hygiene in the labor scope and the inclusion in the list [art. 6, inc. 2), LRT] of the professional diseases caused by this modality of provision of tasks.
The unified project states that “in the case of transnational teleworking benefits, the law of the place of performance of the tasks or the law of the employer’s domicile shall apply, whichever is more favourable to the person working”.
The hiring of foreign persons who do not reside in the country must be authorized by the Ministry of Labor, and the collective agreements will define the maximum limit for this type of hiring.
Registration of employers
The Ministry of Labour must register the companies that develop the telework modality, accrediting the software or platform to be used and the payroll of the personnel that develops these tasks.
If the project is approved, it will come into effect 90 days after the end of the social, preventive and obligatory isolation.
In Auxadi we are experts in providing value added services in accounting, tax compliance and international payroll management. We work every day to keep up to date with all legislative developments at an international level, which is crucial in extraordinary and uncertain times such as the ones we are experiencing. If you need to expand on what is set out here, please do not hesitate to contact us.
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Carolina Farfán Rojas
All information contained in this publication is up to date on 2020. This content has been prepared for general guidance on matters of interest only, and does not constitute professional advice. You should not act upon the information contained in this chart without obtaining specific professional advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this content, and, to the extent permitted by law, AUXADI does not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting, or refraining to act, in reliance on the information contained in this chart or for any decision based on it.