TELEWORK IN CHILE. CURRENT AND CONTINGENCY.

The global crisis caused by the COVID-19 virus pandemic has had many repercussions in Chile, one of them having forced the enactment of Law No. 21.220, which establishes remote work and, especially, teleworking. The emergency situation also involved the promulgation of other regulations on the matter, by the State. In this article we will observe how teleworking has been regulated in its various facets.

Regulation of Telework in the Chilean Labor Code

Despite being the last figure to be established, we must begin with its analysis, due to its importance within the labor system. It was established by Law No. 21.220, published in the Official Gazette on March 26, 2020, after extensive processing, amending the Labor Code.[1] We will call this guy “teleworking at work”.

The last boost to your promulgation was consequence of the health crisis due to the COVID-19 pandemic, requiring a regulation that regulates remote work of a technological nature, which was seen as a way to alleviate the employment situation of those people who could provide services without staying at their workplaces . La appearance teleworking It had already happened years before as a form of work, used for the most part for higher levels or company headquarters; but nevertheless isat conjuncture, was urgently required to regulate a way of providing services that would become massive and without clear rules, which could be used for abuse.

Another situation that must be borne in mind is that what is regulated in itself is not the special telework contract, but the so-called remote work contract, of which telework is a species, with certain particular rules.

In its first provision, it makes two minor adjustments: in article 22, second paragraph, it changes the expression "in your own home" to "in your home", establishing a more precise concept around the place where services are provided. Within the fourth paragraph of the same article, the expression “technological” is inserted between the words “means” and “computer”, making a precision of the technology applicable to the case. In both cases it refers to exceptions to the ordinary working day.

From its legal regulation we can make the following comments:

1. We must note the distinction made between the remote contract and teleworking, when pointing out that it is remote work, one in which the worker provides his services totally or partially from his home or another place or places other than establishments, facilities or company tasks. It becomes teleworking, if the services are provided using technological, computer or telecommunications means or if such services must be reported by said means (art. 152 quáter G, second and third paragraph).

This point must be well clarified. Teleworking would not always operate as an exception to the ordinary workday, as might first be thought, because the services were provided outside the company's establishment. It remains an ordinary day, unless the parties agree to be excluded from it, but adds a complementary criterion, consisting of the simply legal presumption, that the worker is subject to an ordinary day if the employer exercises supervision or functional control over the form and opportunity in which said tasks are carried out (art. 152 quáter J, fourth paragraph).

Here, the new Law repeats the criteria established in letter a) article 42 of the labor code, when it institutes criteria on compliance with ordinary working hours in relation to the minimum income. Indeed, one of them is that the employer, through a hierarchical superior, exercises direct functional supervision or control over the way and opportunity in which the work is carried out. The aforementioned provision closes, that there is no such functionality when the worker only delivers the results of his efforts and reports sporadically, giving the example of carrying out work in regions other than that of his employers.

This is where the final phrase of the characterization of teleworking becomes important, which refers to reporting services by technological, computer or telecommunications means. These new means can cause there to be a control, regarding the worker's performance, similar to that produced as if he were working next to the employer. Furthermore, if the computer system is highly developed, it can result in even more demanding control from the employer.

We must point out that the final phrase that refers to reporting services by technological means, must be coordinated with that mentioned in letter a) article 42 of the code, understanding that in the first case the report is continuous or bidirectional (as if it were in the same place of the employer) and the second can be sporadic and rather, one-way (from the worker to the employer) where we would find a telework exempt from the ordinary day.

2. Another point to highlight is the inclusion of the so-called job disconnection. Thus, article 152 quater J, final paragraph establishes that, for distance workers or teleworkers excluded from the ordinary workday, their right to disconnection for a period of twelve hours within one of twenty-four hours must be respected by the employer . This implies that, in this period, the response of communications, orders or other requirements of the employer cannot be required. This situation also extends to the periods of rest, leave and annual holiday of the workers.

The use of information and telecommunications technologies in the workplace has been very important in recent years, to the point that it allowed breaking the rigid separation between the workplace and staff, causing situations in which workers during their work hours Rest were subjected to the same demands as if they were in their working hours.

This led legislators to try solutions, the first of which was Law No. 2016-1088, called El Khomri, issued in France and amending the Labor Code. This regulation established the regulation for the exercise of the right to disconnect and the regulation of the use of digital devices by the company. His objective was to ensure respect for rest and vacation time and also for his personal and family life. The regulation operated with agreements between the employer and the workers, and if there were none, it could be established unilaterally, after hearing the works council or staff delegates, through a policy of action in this regard. The latter had to establish the modalities of the use of the right and, also, the training actions for the reasonable use of digital devices.[2]

On the other hand, in Spain the new Organic Law 3/2018 on protection of personal data and guarantee of digital rights, establishes the regulations in its article 88 as "right to digital disconnection in the workplace". In its numeral 1, it institutes said right for both public and private sector workers, in order to guarantee rest, permits and vacations, as well as to protect their privacy, personal and family. In number 2 it refers to the guiding aspects of this regulation, as well as the nature and purpose of labor regulation, reconciling work activity with private and family life, all of them as determined by collective bargaining or direct agreement between employers. and workers. Number 3 refers to company policies in this regard, addressing the regulation of disconnection itself, such as training personnel on how to use computer technology to avoid what they call computer fatigue. This number concludes by noting that this regulation applies to both partial and total distance work, and also in those cases in which the employee uses technology for work purposes (we understand that it is not a teleworker).

From these two rules we can draw various consequences. First, the French case refers to workers in the private sector, while the Spanish covers these two areas, public and private. The recent Chilean law only deals with the case of private sector workers.

On the other hand, both standards establish that the establishment by agreements between workers and employers, through policies within the company, what we understand in Chile as internal regulations, without prejudice to being established in collective or individual contracts. In the case of our country, we see that there is a special contract in this regard, where a state regulation of individual court prevails, which would not hinder an agreement with a union or negotiating group, if necessary.

We must also note that the emphasis in foreign legislation is on breaks, permits or vacations, but, in addition, it refers especially to the protection of personal or family life, according to the French text, or personal privacy or family, in the Spanish case. None of this exists expressly in Chile. Without prejudice to this, this can be saved by invoking the first paragraph of article 5 of the Labor Code that declares as a limit of the powers, that the Law recognizes to the employer, to the constitutional guarantees of the workers, especially, privacy, private life or their honor.

Finally, in both legislations it leaves the field open for communication restriction, whether there is telework as a form of provision, or a job performed normally with the use of technology. Even the Spanish standard says at the end "in those cases in which the employee uses technology for work purposes." On the other hand, in the Chilean case, this is restricted in remote work, or in telecommuting, being outside the norm the workers who provide services in person, but in which technology has a widespread use, more not predominant.

3. It is clearly established that remote work or teleworking is understood as long as it does not provide services in places designated or enabled by the employer, even when they are in places outside the company's premises (Art. 152 quáter H, second paragraph).

This is vitally important, since if it were not so, they would be working in the company's own places, missing the locative or spatial element of teleworking, that is, moving from the company's facilities to a different place.

4. Another interesting rule is the duty to communicate, on the part of the employer, the existence of legally constituted unions or the fact of the constitution of a new union after the employment contract (art. 152 quáter N). Along with this, there is access to the company's facilities or, also, participating in collective activities, with the employer being responsible for the transportation costs (art. 152 quater Ñ).

This is an interesting norm, since remote or teleworking can be seen as a way to avoid the emergence of union entities, atomizing workers and their organizational capacity to look after their common interests. This idea of ​​relocation threatens the physical proximity of workers, a fundamental factor in the emergence of union activity.

Furthermore, article 152 quáter G, final paragraph, indicates that these workers will not be impaired in their individual and collective rights, unless they are not compatible with this special contract.

5. We must, in any case, point out the lack of regulations on confidentiality and secrecy of the information provided by the employer, a provision that expressly appeared in the second paragraph of article 80 of Senator Bianchi's bill of 2006.[3]

The norm inserted in the Labor Code does not indicate any information on the matter, although it could be deduced from what is established in number 4) of article 152 quater K, when speaking of the mechanisms of supervision and control of the employer with respect to the agreed services. with the worker.

Regulation of Telework in the Judiciary

For its part, the Judiciary has regulated the use of technological means through the agreed-upon car that regulates teleworking and the use of videoconferencing in the Judiciary, contained in Act No. 41-2020, approved by the Supreme Court on 13 March 2020, and published in the Official Gazette of March 18 following. We will call this guy "judicial teleworking."

Unlike the previous case, we are facing an infralegal level regulation, an agreed upon car, the equivalent of the regulations of the State Administration. On the other hand, the system of provision of services is, as a rule, of a statutory type (contained in the Organic Code of Courts) as opposed to the contractual private labor type. The standard establishes two parts: one related to teleworking and the other to the application of videoconferencing. The first part will be the subject of our analysis.

 We can comment on the following relevant aspects:

1. In its 1st article, telework is defined as a modality of labor organization, which has a lot of logic, since, according to the service provision system in the Judicial Power, it cannot operate as a special labor contract. Under this idea, teleworking serves to ensure the continuity of operations of the Judiciary and, on the other hand, as another way for officials to comply with their labor obligations.

Notwithstanding the foregoing, in some provisions it mentions the authorization or agreement. In the first case, it is understood to refer to officials of the Judiciary under the statutory regime; in the second, we could understand those people who work for him under a different regime.

2. Article 4 establishes two ways of providing telework: one without physical transfer, which implies that the teleworker official is in his usual place of work, but carrying out tasks or activities that correspond to another unit and of a similar nature, which is called teleworking between courts. To characterize it, he points out that the official who telecommutes in this way does not belong to the other unit for which he works, but only does so with respect to the assignment of cargo, but this does not alter the organic dependency he possesses (arts. 3, letter g; and art. 4). Said norm is repeated in the specific regulation contained in article 20 letter a), which indicates among the coordination rules for these cases that the organic or disciplinary dependence of the teleworker is not altered. Lastly, literal (ii) of article 6 indicates that telework is understood to exist when a person being in the dependencies of his unit, performs functions for a different unit of a similar nature.

Teleworking with physical transfer is one that involves movement in attention to the place where it is carried out, being able to be inside or outside the institutional units. We find, then, that it is subdivided into external, that is, the one authorized to be carried out in a remote place outside the network and dependencies of the Judicial Power or the Administrative Corporation, being able to be the domicile informed by the official or another place. It is internal or institutional when it refers to infrastructure enabled by the Judicial Power or its administrative corporation, for the development of its operations and that is not the unit or court for which it ordinarily works.

As evidently highlights, there is a radical difference between judicial teleworking and labor teleworking, since it requires a different venue than the employer to be configured, to the point that the final paragraph of article 152 quater H establishes that it is not considered remote work or telework if the worker provides services in places designated and enabled by the employer, even when they are located outside the premises of the company. Under this criterion, there is no teleworking without physical transfer outside the company premises.

However, judicial teleworking allows functions to be carried out within the premises of the same court where you work, but for another court. Now, if we consider the Judiciary as an employer, there is no difference regarding where you work, breaking the rule of distance from your employer. On the other hand, if we consider the court of origin as your employer, teleworking for another could result in the relocation of the official, but we find that he does not work for his court of origin but for a different one, and without a relationship of organic dependency on the latter, blurring the idea of ​​teleworking.

With respect to the other type, teleworking with physical displacement, we must make a sub-distinction. If it is external teleworking, we are dealing with the classic figure of teleworking, services are provided outside of premises belonging to the employer, which is also reflected in article 6 literal (i) when pointing out that telework exists when a person performs functions in a Physical place other than the usual seat of the unit to which it belongs, which does not imply a service or destination commission. On the other hand, if we speak of internal or institutional teleworking, we cannot speak of teleworking as such, because services are being provided in the areas of the employer, the Judiciary, losing the distance between it and the worker.

Here we must observe the figure of the telecentres referred to in article 2 letter f), which designates them as a teleworking unit located in dependencies of the Judiciary, which is constituted as a permanent or temporary way to provide functions to one or more judicial units. From this we can deduce that the Judicial Power can enable special places within its dependencies to telework, different from the case of the worker who could do it within the premises of his court of origin, but to another court. The first case, in other countries, is called teleworking in "satellite centers", but with the understanding that there is no functional hierarchy, despite the premises belonging to the employer. If there were, it would not be teleworking in the strict sense. But, in any case, he is in the employer's premises, losing his distance as an element of telework.

3.Regarding the types of teleworking, the standard distinguishes two regimes: one ordinary and the other extraordinary.

The first proceeds only for reasons of good service, being formally determined in writing, and may be carried out by telecentre, or from outside the Judiciary (art. 13).

The second proceeds by chance, force majeure or, in general, any circumstance that prevents the performance of functions in court, or that threatens or disrupts its normal operation. It can also be applied in any other circumstance, which makes it advisable to adopt preventive measures for the care of those who work in the Judiciary or its users (art. 16).

4. An important aspect is established in article 9 of the agreed-upon car, indicating the obligation of the official to remain locatable at the address or place where he indicated that he was going to provide services, during the ordinary working day. In addition, you must maintain contact through institutional or personal email, or home phone. Exceptionally, another equivalent means may be agreed, such as instant messaging services or videoconferencing systems.

It is an interesting provision and is unmatched in the newly issued provisions in the Labor Code.

Regulation in the State Administration

Of the three cases that we analyze for this article, the one that we will present below can be considered the first regulation of the teleworking modality.

This is the establishment at the legislative level, but of a transitory and experimental type, and applicable to a system of service provision, in general, of a statutory nature. We will call this modality "public teleworking".

Indeed, its first appearance was in article 43 of Law No. 20.971, published in the Official Gazette of November 22, 2016. It was applied to 10% of the maximum strength of officials of the National Institute of Industrial Property (INAPI ), between the years 2017 to 2019.

We must note that, by article 37 of Law No. 21.050, published in the Official Gazette of December 7, 2017, the application of the system was extended to 2019 and the possibility of increasing the percentage of teleworkers, from the 10% up to a maximum of 35%, in the years 2018 and 2019.

Finally, through article 42 of Law No. 21.196, published in the Official Gazette of December 21, 2019, the possibility of using telework for INAPI officials was expanded for the years 2020 to 2022, maintaining the percentage of the maximum endowment. Like the original Law, the entity must inform the Mixed Special Committee on Budgets of the National Congress and the Budget Office (excluding in this version the Ministry of Economy, Development and Tourism), the evaluation of the application of said modality.

 However, due to the contingency created by the COVID-19 pandemic, in fact, a large part of the institution's personnel have migrated to telework.

Regarding the application of teleworking in the public sector, certain standards have been promulgated, which regarding our study subject, have provided the following:

1. By Presidential Circular Letter No. 3, dated March 16, 2020, it was established in its number I on management measures in public services, that the superior head of the service in relation to officials who are not using their medical license, either in cases of risk or of officials who must provide services with physical separation, provide for the development of work remotely through electronic means.

The duration would be for a term of fourteen calendar days, in those officials who had contact with people with confirmed contagion with COVID-19, and for the time determined in the other cases, where there was exemption from time control and tasks should be established assigned and how to account. All this had to be established in the respective administrative acts.

2. By Opinion No. 3.610-20, dated March 17, 2020, the Office of the Comptroller General of the Republic established that the superior heads of service may provide that the servers, whatever the legal link, perform their functions by remote work from their home. or other places, provided that said flavors can be developed in this way and determined by the respective authority. This must be done through a well-founded administrative act, specifying the modality that is adopted and indicating the units or groups of servers that provide critical services, which must continue to perform functions in person and, on the other hand, which modalities may be used in the rest of the personal.

Extraordinary work is not appropriate, due to the fact that it is provided outside the workplace and without being subject to control measures.

3. The Presidential Circular Letter No. 10, dated March 18, 2020, established the guidelines for the superior heads of service in relation to remote work, minimum services and essential shifts, related to the pandemic.

In numeral 1, it gives extraordinary and definite time the faculty, to the superior heads of services, to determine the remote working mechanisms for the officials and servants, whatever the nature of their legal labor relationship. By administrative act, the modality to carry out the work should be defined.

In numeral 5, it indicated that the superior heads of service had to send within twenty-four hours after the date of the office, a copy of the administrative act where the flexible work modality to be carried out remotely was established, the shift contingency plan and other measures taken.

4. By Presidential Circular Letter No. 18, dated April 17, 2020, provides for the gradual return of public officials to their work, except for risk groups, which may continue to work outside institutional facilities, by remote means electronically.

5. By Opinion No. 8.232-20, dated April 23, 2020, the Office of the Comptroller General of the Republic reiterated, upon consultation with the Municipality of Providencia, the inadmissibility of overtime for officials and servers who provide services remotely through remote work. Invoking the respective articles of the Administrative Statute, Law No. 18.834 and of the Statute of Municipal Officials, Law No. 18.883, it stated that the officials and servants were subject to the obligation to comply with the workday, carrying out their duties regularly and continuously. . Their working day is forty-four hours a week and with a cap of nine hours a day, with penalties for eventual non-compliance. Extraordinary work can be established by the superior chief or the Mayor after ordinary hours, at night and on Saturdays or Sundays or holidays in non-deferrable tasks, compensable with rest and, eventually, with a surcharge in remuneration. Finally, there is the possibility of official duties inside or outside the usual place of performance.

The preceding description makes it impossible to sustain the possibility of compensatory rest or the payment of overtime for remote work by teleworking, since there are no mechanisms to accurately control compliance with working hours in such circumstances, and determine when appropriate. such rest or the payment of overtime.

In addition, it states that the provisions of Laws No. 20.971 and 21.196 expressly excluded the application of overtime contained in article 66 of Law No. 18.834. Finally, if accepted, it would generate a situation of inequality between remote and on-site officials, since the latter would not be entitled to compensatory rest or overtime pay that the former would have.

Finally, the level of occupation of telework in the public sector reached such a degree that the government announced a Bill to regulate it permanently.[4] As we can see, much of the determination of the conditions of how teleworking is carried out, is left to the superior head of the service and the mayor, which can cause many problems and diverse solutions, even contradictory, threatening a common rule for all public officials.

Conclusions

As we can see, the regulation of telework in Chile is contingent, in the sense of having been established due to specific and urgent circumstances, such as the current pandemic. The only one that was almost unprecedented for its establishment is the Supreme Court's agreed upon order, with specific experiences. The reform of the Labor Code had long-standing bills and a use in some sectors of workers; and public teleworking standards were very general and applied on a minimal scale in a single public service.

Although we have two regulations with varying degrees of detail, the Labor Code and the Supreme Court's Agreed-Upon Order, over time they should be subject to review, especially in the first case, where certain criticisms are already noted.

Where a greater effort will be needed is, in the public sector where, according to what was found, the norms are very broad, almost non-existent, and could generate problems. The regulation must have a minimum degree of precision, which makes it applicable to the wide variety of issues and areas in which the State Administration operates.


[1] For a preliminary view see VERGARA, Manuel. The current state of computing in Chilean labor law, in “Law and New Technologies. The impact of a new era ”. Jhoel Chipana Catalán (coordinator) Editorial Jurídica Themis. Lima, Peru, 2019 (pp. 293-310).

[2] BUSTS, Sofia. On the digital disconnection of workers in Chile. Constitutional Journal Electronic Portal (Chile), specifically https://www.diarioconstitucional.cl/noticias/asuntos-de-interes-publico/2019/06/19/reportaje-sobre-la-desconexion-digital-de-los-trabajadores-en-chile/ (June 19, 2019). The translation of the aforementioned rule was extracted from this article.

[3] Bulletin No. 4.712-13, of December 5, 2006.

[4] Diario Financiero website, specifically https://www.df.cl/noticias/economia-y-politica/politica/pinera-anuncia-ley-de-teletrabajo-para-el-sector-publico-y-pospone/2020-04-19/215531.html (19.4.2020). Likewise, Diario La Tercera Website, specifically https://www.latercera.com/politica/noticia/pinera-prepara-retorno-gradual-de-funcionarios-publicos-y-protocolo-para-sector-privado/IKDIZC2I2VFKJARIPQCUXAEEGE/ (19.4.2020).

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Manuel Vergara Rojas
Lawyer. Degree in Legal Sciences from the University of Valparaíso, Chile (State). He currently works as a Professor in the Law Degree, Viña del Mar Headquarters of the University of Las Americas and assistant in the Law Degree at Andrés Bello University, Viña del Mar Headquarters, in the area of ​​Public Law and Law History. He has published three books and scientific articles on public, computer law and history of law education.

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