On 30 July 2020, the National Senate approved the Legal Regime of Teleworking Contract (“Teleworking Law”), which already had the approval of the Chamber of Deputies, thus acquiring the approval of both Chambers. We cannot rule out that the law could be modified at the time of its enactment by the Executive, or even substantially modified through regulation or collective bargaining.
The following is a brief summary of the most relevant aspects regulated by the new Teleworking Law.
Teleworking Law provides that there is a telework contract when the employee performs acts, executes works or provides services, in the terms of sections 21 and 22 of the Labour Contract Law, totally or partially at the employee’s domicile, or in places other than the employer’s establishment or establishments, through the use of information and communication technologies (“ICTs“).
Teleworking Law guarantees minimum legal requirements for a teleworking contract and provides that specific regulations for each activity will be established through collective bargaining complying with the principles of public order that arise from the Labour Contract Law.
The working day must be agreed in advance and in writing, complying with legal and conventional limits in force. Teleworking Law establishes that the platforms and/or software used for the specific purposes of teleworking must not allow the connection of the worker outside the working hours.
Right to digital disconnection.
The teleworker will have the right not to be contacted and to disconnect from digital devices and/or ICTs outside of the working hours and during leave periods. A worker may not be penalised for making use of this right.
Teleworking Law also provides that the teleworker cannot be required to perform tasks or to receive communications by any means outside working hours.
Care tasks to be carried out by the employee.
When the worker proves being in charge, either solely or with other, the care of persons under thirteen (13) years old, persons with disabilities or elderly adults who live with the worker and require specific assistance, such worker will have the right to schedule compatible working hours with the care tasks in their charge and/or to interrupt the working day for the purpose of performing these care tasks.
Any act and/or conduct of the employer restricting and/or causing detriment to this right shall be presumed to be discriminatory in which case the provisions of Law on Discriminatory Acts No. 23,529 shall apply.
The transfer from the on-site modality to the teleworking modality must be done with the employee’s voluntary acceptance in writing, except in duly accredited cases of force majeure.
Teleworking Law provides two different cases, on the one hand, the worker who performed tasks in an on-site modality and voluntarily agreed to provide tasks under telework modality; and, on the other hand, the worker who from the beginning of the working relationship agreed to provide tasks under telework modality.
In the first case, the teleworker may revoke the consent given at any time during the employment relationship and with no prior notice, and the employer is obliged to reinstate the teleworker in the establishment in which he or she had previously performed tasks, or, in the closest establishment to the worker’s home in which he or she could perform tasks, unless due to justified reasons it was impossible to comply with this obligation.
Failure to comply with this obligation will be considered a violation of the duty of occupation pursuant to section 78 of the Labour Contract Law, and the employer’s refusal will entitle the worker to consider himself/herself dismissed on constructive basis or to claim reinstatement of the prior conditions.
In the second case, where the teleworking modality was agreed upon from the beginning of the labour relationship, the eventual change to an on-site modality will operate according to the guidelines established by collective bargaining for each activity.
The employer must provide the employee with the necessary equipment, including hardware and software, the work tools and support necessary to perform the tasks, as well as assume the costs of installation, maintenance and repair of such devices. Teleworking Law contemplates the possibility that the teleworker provides the work elements and the employer compensates the use of such tools of the worker’s ownership, in which case, such compensation will operate according to the guidelines to be established by collective bargaining.
When the work elements are provided by the employer, the teleworker will be responsible for the correct use and maintenance of the elements and tools provided and must ensure that they are not used by any person outside the employment relationship or contract. Under no circumstances will the teleworker be responsible for the normal wear and tear resulting from the use and passage of time.
In the event of a damage or breakage of the elements that make it impossible for the employee to perform tasks, the employer must provide for their replacement or repair, without affecting the teleworker’s usual remuneration.
Compensation of expenses.
The teleworker shall have the right to compensation for the higher connectivity and/or service consumption expenses incurred within the performance of tasks. Such compensation shall operate according to the guidelines established by collective bargaining and shall be exempted from the payment of income tax. The Law does not provide whether or not these expenses shall be considered as remuneration.
Control systems and the right to privacy.
The control systems implemented to protect the employer’s assets and information shall have union participation in order to safeguard the teleworker’s privacy and the privacy of his home. The employer may not use surveillance software that violates the teleworker’s privacy.
In cases of transnational telework, the law of the place of performance of the tasks or the law of the employer’s domicile, whichever is more favorable to the teleworker, shall apply.
When the teleworker is a foreign person not resident in the country, the prior authorisation of the Ministry of Labour, Employment and Social Security is required. At the same time, it is established that collective agreements must establish a maximum limit for this type of hiring, according to the nature of each activity.
The Ministry of Labour, Employment and Social Security will keep a register of the companies that implement a telework modality, where the employer must present the software or platform to be used and the list of the employees under this working modality, having to inform before each registration or on a monthly basis. This information shall be sent to the relevant union.
Any inspection by the Ministry of Labour, Employment and Social Security, if necessary, must have the prior authorisation of the teleworker.
Teleworking Law will enter into force ninety (90) days after the end of the social, preventive and mandatory isolation currently in force.
This report should not be considered as legal or any other type of advice by Allende & Brea. For more information on these articles or any other issues involving labour and employment matters in Argentina, please contact Nicolás Grandi (Partner) of Allende & Brea at email@example.com or visit www.allende.com.