Chile: Department of Labour issues Opinion on Digital Service Platform Workers
On 19 October 2022, the Department of Labour issued an opinion setting the scope of the law regarding digital service platform workers (Law No. 21,431). Among the most important aspects of the opinion, it is important to point out the following:
- The Law distinguishes between dependent (subject to the full rules of the Labour Code) and independent (subject to certain minimum conditions) digital platform workers, depending on whether or not there is a link of subordination and dependence.
Under the opinion, the Department of Labour has stated that it is legally empowered to qualify and classified the type of worker. Hence, the ponderation of the factual elements entailed in a particular case is no longer an issue that must be ruled by Labour Courts.
This certainly is an important point, since a government agency, created to interpret the law, it is attributing itself the power to know and judge the existence of Labour relations (which is legally the justice system prerogative).
- The opinion also provides that dependent workers must comply with all the following elements: (i) execution of personal services; (ii) the services must be performed on behalf of others, alluding to the concept that has been developed by the Department of Labour regarding this matter, since it is key to differentiating a dependent worker; (iii) the services are requested by users of a technological application administered or managed by the digital service platform company; and (iv) the existence of subordination and dependence.
In connection to this last point, the Department of Labour opinion provides the necessity to identify new Labour indicators that construe as elements of subordination and dependency. The creation of these new indicators must be based on the special features of the services provided through these platforms. This will certainly expand the scope of the ponderation of dependent workers.
- Also, the opinion refers to termination severances applicable to these workers. According to the law, the calculation of the last month salary must be made considering an average of the last year remuneration (excluding the months not worked).
However, the Department of Labour criteria is to apply the general rule applicable to the severance of years of service, should the Law’s application cost a lower amount.
Furthermore, the opinion rationale is that severance calculations and rules must apply to both dependent and the independent worker.
- Finally, the Department of Labour addresses the collective rights of digital platform workers. The opinion expressly recognises for both dependent and independent workers the right to create a union, joining and disaffiliating it. Also, unions conformed by this sort of workers are legally entitled to company’s information, collective bargaining, and strike, among others.
However, under the opinion independent workers’ unions leaders are not legally protected from dismissal. Yet, they are entitled to anti-union practices protection framework in the execution of their tasks as leaders.
Key Action Points for Human Resources and In-house Counsel
Main aspects regarding the Department of Labour’s opinion setting the scope of the law regarding digital service platform workers.