A REGULATION TO CORRECT ERRORS

Lawyer. Employment advisor of companies and chambers of business. Academic Counselor for Libertad y Progreso.

El Cronista – Whereas robotics reduces human employment at factories, telework increases human work in a decentralized and distributed way, outside employers’ physical offices, thanks to the use of telematics tools.

The State -at the national, provincial and municipal levels- has been digitizing more than two thirds of its administrations, and has gone 80% paperless. The private sector is widely using online services on the web, the Internet and social media. Almost 90% of companies with more than 100 workers are undergoing processes of full digitization, and leading companies have already covered all areas of services.

The era of Telematics (Computer and Communications) is in full swing, accelerated or triggered by the Covid-19 pandemic, which has led everyone to adapt to new technologies, and use all services through Apps.

Executive Order No. 27/2021 (Official Gazette of January 20, 2021) was passed to partially regulate Act No. 27555 on Remote Work, in an attempt to change the focus of some of its provisions in the context of the integral body of labor laws and its regulatory framework. It is worth mentioning that the Act has been heavily criticized for its precariousness, the obstacles it poses to business operation, and because it does not promote job creation, as it is widely recognized.

Considering that the regulation cannot alter the letter and spirit of the law through exceptions, as provided by the National Constitution, the regulations prepared by the team of Minister Claudio Moroni, interpreting some unanimous criticism against the law introduced by the House of Representatives at Congress, show that the Department of Labor wishes to promote job creation and authorize a work arrangement that is currently outpacing in-person work, and will soon become the most widespread form of employment in Argentina and around the world.

The enactment of Act 27555 in mid-2020 and the subsequent discussion under comparative law revealed that lawmakers had not been careful enough, and tried to improvise with a legal system that requires the involvement of experts.

Note both Act No. 27555 and Executive Order No. 27/2021 have not become effective yet, and therefore the labor laws currently in force are more than enough to provide a framework for the subsystem.

Some of the issues dealt with in the regulation that in this context provide some degree of optimism for what the future may bring include: voluntary acceptance, equal rights and duties, the right to disconnect, reversibility, working hours and caregiving responsibilities, and privacy protection.

In accordance with Executive Order No 27/2021, the subsystem should be made clear and dispel any doubts. So far there is no teleworking, but a time assignment in writing because occasional or sporadic remote work arrangements are excluded, just like those that are planned to be carried out from a third party’s home. In other words, working through a cellphone or Internet connection without a time assignment agreed under contract does not account for a remote work arrangement per se.

Voluntary acceptance, i.e. workers give their express consent, must be made in writing under a contract, within the framework of the work arrangement included in the Employment Contract Act Section 102 bis, with discernment, intention and freedom. This means that the tacit acceptance of the consensual employment contract under the general legal system is not admissible.

Equal rights and duties in an obvious statement did not require a law; instead, lawmakers should have known that there is the need to adapt the law to this new work arrangement.

The right to disconnect, whereby workers should not engage in work-related electronic communications during non-work hours, is a right and duty, because with this mechanism usually promoted by companies, workers’ daily and weekly rest breaks are guaranteed, thus avoiding any claim for unauthorized overtime. 

Reversibility, perhaps the most controversial right under this Act, is governed by the principle of good faith and reasonableness, which is a right applicable to those who quit in-person work to work remotely during the pandemic, but it must be exercised adequately, complying with the requirement of notice, a reasonable period of exercise and a supervening cause, regardless of the changes made by the company to reformulate its business as a result of new technologies. 

Working hours and any special cases must be agreed in writing under the contract, indicating terms and interruptions, and where appropriate, establishing a reduced workday.

Privacy protection and union involvement have been limited to joint audits, regardless of the fact that workers enjoy the constitutional protection of inviolability of private property.

The regulation of the National Remote Work Act has been a commendable initiative, taken by specialists in the field, which requires a more comprehensive and versatile definitive law in the near future and other regulations aimed at covering this work arrangement that will account for almost all global employment and the only source of sustainable work in the world of new technologies.

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