On March 11, 2022, Law No. 21,431 was published in the Official Gazette, which amends the Labor Code by regulating the contract of workers of digital service platform companies. In this regard, this law provides the following:
1.1. A digital platform company shall be understood as “that organization that, for a fee, administers or manages a computer system or technology system executable in mobile or fixed device applications that allows a digital platform worker to perform services for the users of such computer or technological system in a specific geographic territory, such as the collection, distribution and/or delivery of goods or merchandise, minor passenger transportation, or others”.
1.2. A digital platform worker shall be understood as “one who performs personal services, either on his own account or on behalf of others, requested by users of an application administered or managed by a digital service platform company”.
II. The employment contract of dependent digital platform workers.
2.1. Digital platform workers who provide personal services for a digital service platform company (hereinafter, the “Company”) under dependence and subordination, are governed by Paragraphs I, II and IV of Chapter X of the Labor Code and the general rules of the same Code, insofar as they are not incompatible or contradictory with those set forth in such paragraphs.
2.2. The contract of dependent digital platform workers shall indicate, in addition to the provisions of the employment contract set forth in Article 10 of the Labor Code, a number of additional provisions.
2.3. The Company shall inform in writing to the dependent digital platform worker about the risks involved in their work, preventive measures and the correct means of work in each particular case.
2.4. With respect to this type of workers, the entire time during which the worker is at the disposal of the Company, from access to the digital infrastructure and until he/she voluntarily disconnects, shall be considered as working time.
2.5. Workers may freely distribute their working day in the schedules that best suit their needs, always respecting the maximum limit of the ordinary weekly and daily working day.
2.6. Digital platforms shall implement, at their own cost, a reliable mechanism for recording the working day of digital platform workers.
2.7. The parties may agree on wages in accordance with the provisions of Article 44 of the Labor Code or for services actually rendered. In any case, the salary per hour actually worked may not be less than the proportion of the minimum monthly income determined by law, increased by 20%.
2.8. If salaries are paid for services effectively rendered to the platform users, the payment of wages shall contain in an annex, which constitutes an integral part of the same, the details of each operation that gave rise to it and the form used for its calculation.
2.9. Remunerations shall be paid at the periodicity stipulated in the contract. In the absence of stipulation, remuneration shall be paid weekly.
III. Employment contract of independent digital platform workers.
3.1. The services provided through a Company by independent digital platform workers shall be governed by the provisions of Paragraphs I, III and IV of Chapter X of the Labor Code.
3.2. The Company shall limit itself to coordinate the contact between the independent digital platform worker and its users.
3.3. The contract for the provision of services of this type of worker must be in writing and indicate, in clear, simple language and in Spanish, a series of special stipulations.
3.4. The Company may only enable the independent digital platform worker in its systems once he/she has expressly declared his/her agreement with the terms and conditions of the contract. Any modification of the contract must be informed and accepted by the Freelance Digital Platform Worker in order to be applicable.
3.5. A copy of the contract shall be delivered, physically or electronically, to the independent digital platform worker and another copy shall be kept at the disposal of the parties in the Company’s computer system.
3.6. Within the respective payment period, which may not exceed one month, the Company shall pay the independent digital platform worker the corresponding fees for the services effectively rendered to its users.
3.7. The Companies shall require the independent digital platform worker to issue the corresponding tax documentation, such as the respective fee slip for the services rendered to the users.
3.8. The fees for each hour of services effectively performed may not be less than the proportion of the minimum monthly income determined by law, increased by 20%. For its calculation, the value of the minimum monthly income shall be divided into 180 hours.
3.9. The Company, in the respective pay period, shall verify that the fees accrued for the services actually rendered comply with these minimum values and, if they are not reached, shall pay the employee the difference.
3.10. The independent digital platform worker shall have the right to access social security coverage.
3.11. The Company shall ensure compliance with a minimum disconnection time of the independent digital platform worker of 12 continuous hours within a 24-hour period.
3.12. The Company may only temporarily disconnect the independent digital platform worker to enforce this right and may not carry out temporary disconnections or other punitive measures based on facts such as the independent worker’s rejection of the service offered or the non-connection to the digital platform of services in a certain period of time.
3.13. In case of prior notice for termination of the worker’s contract referred to in this paragraph, the Company shall communicate in writing the termination of the contract to the independent digital platform worker who has provided continuous services for 6 months or more through its platform, at least 30 days in advance. Such advance notice shall not be required when the termination of the contract is due to conduct described therein that constitutes a serious breach by the independent worker.
3.14. The Company shall respect the constitutional guarantees of the independent digital platform worker, to whom the guardianship procedure regulated in article 485 and following of the Labor Code shall be applicable, in the event that during the last 3 months he/she has rendered services, at least 30 hours on average each week.
IV. Common rules applicable to dependent and independent digital platform workers
4.1. The Company has the obligation to inform the digital platform worker about the service offered. This includes the place of delivery, the identity of the user of the service and the means of payment to be used. In the case of deliveries, the Company must indicate the address where the delivery will be made, and in the case of transport services, the addresses of origin and destination.
4.2. The employee’s data are strictly confidential and may only be used by the Company in the context of the services it provides. They may be released, in any case and exclusively for the purposes requested, by means of a judicial decision.
4.3. Notwithstanding the foregoing, in the event that the employee requests access to his/her personal data, the data must be delivered by the platform within 15 working days from the date of the request.
4.4. In the implementation of the algorithms, the Company shall respect the principle of equality and non-discrimination. Discrimination shall be deemed to be apparently neutral conduct by the employer, the result of which disproportionately affects one or more workers.
4.5. The Company shall provide the employee with:
I. Adequate and timely training that considers the safety and health criteria defined by the competent authority for the activity being performed.
II. A protective helmet, knee and elbow pads for digital platform workers who use a bicycle or motorcycle to provide their services, which must comply with the certifications and regulations in force, in accordance with the Traffic Law. At the end of the services, the worker shall return to the Company the elements provided as agreed.
III. A damage insurance that insures the personal property used by the worker of digital platforms in the provision of the service, with a minimum annual coverage of 50 Unidades de Fomento.
Compliance with these obligations shall not constitute an indication of subordination and dependence with respect to independent digital platform workers.
4.6. For the determination of the legal indemnities corresponding to the termination of the employment contract, the average remuneration of the last year worked shall be considered as the basis for calculation, excluding those months not worked and the years of service shall be taken into consideration.
4.7. The workers of digital service platforms shall have the right to form trade union organizations.
4.8. Union organizations that affiliate dependent and/or independent workers of digital platforms may negotiate in accordance with article 314 of the Labor Code.
4.9. In the event that the draft collective bargaining agreement is submitted to 2 or more companies and each of them agrees to negotiate, each company shall decide whether to negotiate jointly or separately, communicating its decision to the union negotiating committee in its response to the draft collective bargaining agreement.
V. Other Provisions.
5.1. This law shall enter into force on September 1, 2022.
5.2. Companies that at the date of entry into force of this law do not comply with the requirement established in the first paragraph of Article 19 of the Labor Code (minimum percentage of workers of Chilean nationality), shall have a term of 3 years from the publication of this law, that is, until March 11, 2025.
Should you require additional information on this matter, please contact: Alfred Sherman (firstname.lastname@example.org), Gonzalo Aravena (email@example.com), and/or Felipe Ovalle (firstname.lastname@example.org).