18 agosto 2020

Remote work act: a missed opportunity. Nota el cronista

Versión en español

Last Friday, the Government passed Act No. 27555 on Remote Work (Official Gazette, August 14, 2020) despite the strong criticism that came from the unions, the business sector, and experts in the field. It has not been largely questioned for conceptual errors, a lack of specific legislative technique, the use of common language, the lack of legal context, or its contradictions. It has been heavily criticized because it is a law that does not promote employment; on the contrary, it discourages it by posing obstacles against official guidance, in a context where creating new sources of employment will be essential as a State policy due to the collapse caused by the pre-existing stagflation, in addition to the Preventive Mandatory Social Quarantine imposed by the Covid-19 pandemic.

Article by Julián A. de Diego published in El Cronista on August 18, 2020

The text of the law is very precarious, partly because it came from the political wing of the House of Representatives, who showed a lack of basic knowledge about labor law, and drafted it based on paranoia and even conspiracy, thinking that the remote work practices brought about by the quarantine benefit companies and damage workers.

They went so far as to praise the bill by Senator Mariano Recalde from the ruling party, which according to the so-called G-6 (a group gathering the most important businesspeople) was more reasonable than the hybrid passed at the House of Representatives. However, when they had the chance to make positive corrections, as revealed by the Senate Committee Report, someone ordered to pass it without correction, and this is how it all happened.

For now, Act No. 27555 will be effective within 90 days after the end date of the Preventive Mandatory Social Quarantine, and the Department of Labor has 90 days to issue its regulation. The coordinator who is summoning opposition leaders, experts, and representatives of companies and unions has already been appointed.

Every provision of this Act contains controversial elements. For example, Section 1 states that the objectives should be included in the Recitals. This is an unenforceable and empty provision.

Section 2 includes the Employment Contract Act, Section 102 bis, establishing that teleworking contracts and relationships are work arrangements that must be formalized in writing, governed by general law and applicable collective bargaining agreements. This is a copy of a bill by the Department of Labor prepared by Carlos Tomada and Noemí Rial back in 2012, and of Resolution 1552/2012 by Workers’ Compensation Supervising Authority. Probably the only rule worth saving.

In addition, it establishes that it is provisional, and that another definitive law is expected to be passed in the future, so it cannot be fully understood why the rush.

The right to disconnect, the principle of status quo restitution, equal duties and rights, equal pay are presented in a confusing way, mumbling about prevention standards, health and safety, caregiving responsibilities for workers with children and dependents with disabilities, employers’ duty to provide work, non-discrimination, and teleworkers’ rights in a context of compulsive teleworking during quarantine, for the future new reality. Regulation will have to enlarge on and even set all these limitations straight.

Working hours are stipulated in the law or applicable collective bargaining agreement, just like rest breaks, but workers have the right to disconnect outside working hours, during breaks, and while on vacations, regardless of the special and/or flexible work arrangements under the Employment Contract Act or voluntary or compulsory overtime in case of force majeure. Once again regulation plays a key role.

Workers may at any time ask to go back to work at the employer’s facilities when originally they used to work there, a principle that is called “status quo restitution” under Act No 27555, a right that can be exercised without any time frame and without cause (restitutio al status quo ante).

In turn, claimants are given to two options in case of rejection: they may consider they have been terminated with severance pay, and file a legal action seeking return to work at employers’ facilities, thus promoting litigation.

Rights must regulate behavior, the conduct of people in society, and they are not unlimited or unrestricted. The exceptions raised by the lawmaker are extreme, and always entitling workers to constructive discharge, with the incentive of seeking double severance pay under Emergency Executive Order No. 34/2019.

Reference is made to the protection of privacy, but the lawmaker seems to forget the constitutional right of the inviolability of the home, creating limitations that are contradictory and even unfeasible, because the only monitoring mechanism that employers may use is through IT systems.

As to the provision of telematic tools, reimbursement of expenses, and maintenance and repair costs, the law deals with employees’ own equipment and equipment provided by the company.

To some extent, workers are liable for any misuse of the telematic equipment provided by the company; for example if family members use them to play electronic games, games of chance and others, and for the damages caused by willful misconduct or gross negligence. The shortcomings of the law are covered by the Employment Contract Act.

A great opportunity has been missed to design a law that could create new jobs, at times like the ones we are living where job retraining at all sectors have a central aim: create, recreate, or revive as many job positions as possible.

Por Julián A. de Diego
Por Julián A. de Diego

Fundador y Titular del estudio “de Diego & Asociados”.  Abogado, Doctor en Ciencias Jurídicas.

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