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LEY NÚM. 21.431
MODIFICATION OF THE CODEL OF REGULAR WORKING THE CONTRACT OF WORKERS OF DIGITIONAL PLATEFORMS OF SERVICES
Bearing in mind that the H. National Congress has given its approval to the following bill initiated in a motion of the Honorable Senators Mr. Manuel José Ossandón Irarrázabal, Mrs. Carolina Goic Boroevic and Mr. Juan Pablo Letelier Morel and David Sandoval Plaza,
Bill:
"Unique item. Enter the following modifications Labour Codewhose consolidated, coordinated and systematized text was established by Decree No. 1, promulgated in 2002 and published in 2003 by the Ministry of Labour and Social Security:
1.- In paragraph 1 article 38:
(a) Replace, in number 7, the expression ", and" with a point and a comma.
(b) Replace, in number 8, the point and apart, with the expression ", and".
(c) Add the following number 9:
"9.- as dependent on digital service platform companies, regulated in Chapter X of Title II of Book I of this Code."
2.- Incorporate the following Chapter X, in Title II "of special contracts", of Book I:
Working through digital service platforms
Definitions
Article 152 quater P.- Scope of application. This Chapter regulates the relationships between digital, dependent and independent platform workers, and companies of digital platforms of services rendered in the territory.
Article 152 quater Q.- Definitions. For the purposes of this Chapter, it shall be understood by:
(a) Digital service platform company: The organization that, on a onerous basis, manages or manages an executable computer or technology system in mobile or fixed device applications that allows a digital platform worker to perform services, for the users of that computer or technology system, in a specific geographical territory, such as the withdrawal, distribution and/or distribution of goods or goods, the minor transport of passengers, or others.
Digital service platform companies for the purposes of this Chapter shall not be considered as platforms that limit themselves to publishing advertisements for the provision of services of natural or legal persons, or advertisements for the sale or lease of movable or immovable property, even if the procurement of such services can be done through the platform.
(b) Digital Platform Worker: One who executes personal services, either on his own account or outside, requested by users of an application managed or managed by a digital service platform company.
The digital platform worker shall be regarded as a dependent worker or an independent worker, according to the requirements set out in article 7 of this Code.
Work Contract for dependent digital platform workers
Article 152 quater R.- Services provided by dependent digital platform workers. Digital platform workers who, in accordance with Article 7 provide personal services for a digital service platform company under subordination and dependence, shall be governed by the rules of Paragraphs I, II and IV of this Chapter and shall also apply to them the general rules of this Code, as long as they are not incompatible or contradictory to the rules of the aforementioned Paragraphs.
Article 152 quater S.- Work contract stipulations. Without prejudice to the provisions of article 10 of this Code, the employment contract of dependent digital platform workers shall indicate:
(a) The determination of the nature of the services and the terms and conditions under which they should be provided, which should include, among others, the processing of the personal data of the worker and the impact of the qualifications assigned to him by the users.
(b) The calculation method for determining remuneration, form and period of payment.
(c) The designation of an official channel where the worker may present his or her objections, claims or requirements regarding the payments received, the registration of his or her work, the assignment of the same and the evaluation that the clients make about his or her work, the one that must always be attended by a person if the worker requires it. The channel indicated must have a physical place of attention, a local telephone and a representative of the company assigned to serve the purposes described.
(d) The determination of the geographical area in which the worker should serve, or the manner in which the area will be determined. In the event that such determination is free to the worker, the form and timing of notification of the territory where the services are to be provided shall be included in the contract.
(e) The criteria used to establish contact and coordination between the worker and the users of the platform, which should be transparent and objective.
For the purposes of article 10, paragraph 3, of this Code, the area determined in the individual contract shall be defined by place of work, in accordance with the preceding letter (d).
For its part, for the purposes of article 10, paragraph 5, of this Code, the contract should indicate whether the dependent digital platform worker may distribute his/her timetable that best suits his/her needs or is subject to the general rules of the day. In the first case, the contract should also indicate the obligations to be fulfilled by the worker once connected to the platform, as well as the advance in which the worker must inform the digital service platform company when it will be disconnected from it, in order to allow the proper organization of the services provided to the users.
Article 152 quater T.- Protective duty. In accordance with the employer ' s duty of protection, the digital service platform company shall inform the worker in writing of digital platforms dependent on the risks involved in its work, preventive measures and correct means of work according to each case in particular in accordance with the current regulations.
Article 152 quater U.- Working day. For the purposes of this Chapter, the working day is considered all the time during which the worker is at the disposal of the digital service platform company, from access to digital infrastructure and until it is voluntarily disconnected.
Workers will be able to freely distribute their working hours at the time that best suits their needs. The maximum limit of the weekly and daily ordinary day should always be respected, and the rules relating to the weekly rest set out in this Code.
Digital platforms should implement at their cost a reliable mechanism for registering the day of digital service platform workers in the territory, which complies with article 33.
The registration referred to in the preceding paragraph should also clearly identify between the hours of passive working hours, that is, the time when the worker or the worker is at the disposal of the digital service platform company without performing work for reasons that are not attributable to him, of the working hours actually performed, that is, those that mediate between the beginning of the assigned service and its conclusion in the agreed terms.
Article 152 quater V.- Remuneration. In the case of dependent digital platform workers who freely distribute their days in the schedules that best suit their needs, the parties may pay in accordance with article 44 of this Code or for the services actually provided, such as a percentage of the rate paid by the digital service platform company to their users or another assimilable target.
In any case, the actual hourly remuneration worked may not be less than the proportion of the monthly minimum income determined by law, increased by twenty percent, which will aim to pay the waiting times, as well as any other non-effective working time to which the dependent digital platform worker may be subject. For this purpose, the minimum monthly income value will be divided by the number resulting from the multiplication by four of the ordinary weekly maximum set out in article 22 of this Code. The company, in the respective period of payment, must verify that the remuneration earned by the services actually provided meets these minimum values and, if not achieved, shall pay the difference.
If paid for the services effectively provided to the users of the platform, the settlement of remuneration should be contained in an annex, which is an integral part of it, the detail of each operation that gave rise to it and the manner used for its calculation.
Remuneration shall be paid on a regular basis stipulated in the contract. In the absence of stipulation, the remuneration will be paid weekly.
From the Contract of Independent Digital Platform Workers
Article 152 quater W.- From services provided by independent digital platform workers. The provisions of this Paragraph and Paragraphs I and IV of this Chapter shall govern the services provided through a digital platform company by workers of independent digital platforms, i.e. those that are not carried out in the terms specified in Article 7 of this Code.
For this purpose, the digital service platform company should be limited to coordinating contact between the independent digital platform worker and the users of the independent digital platform, without prejudice to establishing the general terms and conditions for operating through its computer or technological systems.
Article 152 quater X.- The contract to provide services for independent digital platform workers. The contract for the provision of services that binds the independent digital platform worker with the digital service platform company should be written and indicate, in a clear, simple and Spanish language, at least the following:
(a) The individualization of the parties.
(b) The terms and conditions to determine the price or rate of the services of the independent digital platform worker and the other monetary incentives to be applied, expressing its value in Chilean pesos and detailing all the variables to be considered for determination.
(c) The criteria used to establish contact and coordination between the independent worker and the users, which should be transparent and objective.
(d) The determination of the geographical area in which the independent worker should serve, or the manner in which the area will be determined. In the absence of stipulation, it is understood that the independent worker is free to do so.
(e) The personal data protection rules of the independent digital platform worker to which the digital service platform company has access in accordance with current legislation.
(f) The maximum time of continuous connection and the obligation of disconnection by the digital service platform company.
(g) The designation of a domicile in the country only for communications and judicial, administrative or similar notifications.
(h) The designation of an official channel where the independent worker may present his or her objections, claims or requirements regarding the payments received, the registration of his or her work, the offer of the same and the evaluation that the clients make about his or her work. The aforementioned channel shall have a physical place of attention, a local telephone and a representative of the company assigned to serve the purposes described.
(i) The reasons for termination of the contract, the form of communication, the deadlines and mechanisms available on the digital platform to claim this term.
(j) General conditions for the provision of services through the digital service platform and other agreements agreed upon by the parties.
The digital service platform company may only enable the independent digital platform worker in its systems, once it has expressly declared its conformity with the terms and conditions of the contract. Any modification of the contract must be informed and accepted by the independent digital platform worker, to be applicable.
A copy of the contract shall be delivered, either physically or electronically, to the independent digital platform worker and another shall be kept available to the parties in the digital service platform company's computer system so that the independent worker can read it through the application or download it for his file and personal use on the device he deems appropriate at any time.
Article 152 quater Y.- The fees of independent digital platform workers and access to the social security system. Within the respective period of payment, which may not exceed one month, the digital service platform company shall pay the independent digital platform worker the fees corresponding to the services effectively provided to its users. For this purpose, the digital service platform company should provide all information registration facilities, payment transfer systems and other necessary operational aspects.
For the purpose of determining the tax treatment of the independent worker, the provisions of article 42, number 2, of the Income Tax Act, contained in article 1 of Decree-Law No. 824 of 1974 and, as appropriate, the other applicable provisions of the Act. For its part, with respect to the retention obligation applicable to the company of digital platform of services constituted, domiciled or resident in Chile, it shall be in accordance with article 74, number 2, of the Law on Taxation or, if applicable, the other provisions of the Act.
Digital service platform companies should require the independent digital platform worker to extend the corresponding tax documentation, such as the respective fee package for the services provided to users, unless the Internal Tax Service establishes, by resolution, another way of documenting the operation.
The fees for each hour of services actually performed may not be less than the proportion of the monthly minimum income determined by law, increased by twenty percent. The minimum monthly income value will be divided into 180 hours. The company, in the respective period of payment, must verify that the fees accrued for the services actually provided comply with these minimum values and, if not achieved, shall pay the difference to the worker.
The independent digital platform worker shall have the right to access social security coverage, as applicable. For this purpose, the provisions of article 92 of Decree-Law No. 3,500 of 1980 shall be subject to the right to make monthly contributions in accordance with the third paragraph of the aforementioned rule, or other applicable rules of that decree. It will therefore be entitled to health coverage, old-age pensions, family burden recognition, occupational accident insurance and occupational diseases, disability and survival insurance, and to accompanying insurance for children affected by a serious health condition, and the other applicable under the current regulations.
Article 152 quater Z.- The obligation to disconnect the independent digital platform worker. The digital service platform company must safeguard the performance of a minimum disconnection time for the 12-hour independent digital platform worker within a period of twenty-four hours.
The digital service platform company may only temporarily disconnect the independent digital platform worker to enforce this right and may not effect temporary disconnections or other fact-based sanctions measures such as the rejection of the independent worker of the service offered or the non-connection to the digital service platform in a given period of time.
Article 152 quinquies A.- From the previous termination notice of the contract of the independent digital platform worker. The digital service platform company must communicate in writing the term of the contract to the independent digital platform worker who has provided continuous services for six months or more through its platform, with at least thirty days in advance. Such anticipation shall not be required when the termination of the contract is due to conduct described in the contract which constitute a serious breach by the independent worker.
In any case, the independent digital platform worker may claim such termination in accordance with the procedure set out in the contract, in accordance with article 152 quater X (i), without prejudice to any other actions that may arise.
Article 152 quinquies B.- Of the fundamental rights of independent digital platform workers. The digital platform company must respect the constitutional guarantees of the independent digital platform worker.
Without prejudice to the general rules in the matter, in the case of independent digital platform workers who, over the last three months, have served through a particular platform for, at least 30 average hours per week, the procedure contained in Chapter II, paragraph 6, of Title I, of Book V of this Code on issues affecting the fundamental rights referred to in Article 485 of that legal body, when those are injured in the case of the digital trade union.
For the purpose of determining the number of hours per week in which the independent digital platform worker has served, time will be considered for the services actually performed, in the terms of article 152 quater Y.
Common rules applicable to dependent and independent digital platform workers
Article 152 quinquies C.- The obligation to report on the service offered. The digital service platform company must inform the digital platform worker, at the time of offering a service and prior to its acceptance, of the place of realization, the identity of the service user and the means of payment that will be used. In the case of deliveries, you must indicate the address where it will take place and, in the case of transport services, the domiciles of origin and destination.
Article 152 quinquies D.- Transparency and the right to information. The data of the worker or the worker are strictly reserved and can only be used by the digital service platform company in the context of the services provided by the same company. They may be released, in any case and exclusively for the purposes requested, through a court ruling.
Notwithstanding the above, the worker or the worker shall have the right to request the digital service platform company, at any time, to access their personal data, in particular those related to their qualification and impact on the performance of their work. The data must be delivered by the platform within fifteen working days from the date of the application.
The worker or worker shall have the right to request the portability of his or her data in a structured, generic and common-use format, which allows it to be operated by different computer systems.
For the purposes of proper control of the competent authorities, digital service platform companies if required, should allow access to the programming of the algorithm, to complete and sufficient explanations of the way in which it makes its decisions, the data with which it was trained and all other relevant factors for the full compliance of the law.
Article 152 quinquies E.- Prohibition of discrimination by automated decision-making mechanisms. In the implementation of algorithms, the digital service platform company must respect the principle of equality and non-discrimination. To do so, it will take all necessary measures and safeguards to avoid any kind of discrimination among workers, particularly in the allocation of work, the provision of bonds and incentives, the calculation of remuneration, among others.
The behaviour of the seemingly neutral employer will also be considered discrimination, and the result of which disproportionately affects one or more workers.
The digital service platform company should inform its workers about the mechanisms and procedures it adopts in order to comply with this rule.
Article 152 quinquies F.- Training and protection elements for digital platform workers. The digital service platform company should provide the worker:
(a) Appropriate and timely training to consider the safety and health criteria defined by the competent authority for the activity being carried out.
(b) A protective helmet, rods and coderes for the digital platform worker who uses a bicycle or motorcycle to provide their services, which must comply with the existing certifications and regulations, in accordance with the Transit Act. At the end of the services, the worker must return to the digital service platform company the elements provided as agreed.
(c) A damage insurance that ensures personal property used by the digital platform worker in the provision of the service, with a minimum annual coverage of 50 promotional units.
Compliance with these obligations will not constitute an indication of subordination and dependence on independent digital platform workers.
Article 152 quinquies G.- Legal compensation calculation basis. For the determination of the legal compensations that correspond on the occasion of the termination of the employment contract, the average remuneration of the last year worked shall be considered as a basis of calculation, those months not worked shall be excluded and the years of service shall be considered. However, if the compensation corresponding to the application of article 163 is higher, it shall be applied.
Article 152 quinquies H.- Collective rights of digital platform workers. Workers of digital service platforms, in accordance with the provisions of article 216, shall have the right to form, without prior authorization, trade union organizations which they deem appropriate, on the sole condition of subjecting themselves to the law and the statutes thereof and shall enjoy all the rights and duties enshrined in this Code.
Without prejudice to the other rules set out in Book IV of this Code, trade union organizations that bind dependent and independent workers of digital platforms or only the latter may negotiate under Article 314 with digital platform companies. In the event that the draft collective agreement is submitted to two or more companies and each of them agrees to negotiate, each company shall decide whether to negotiate jointly or separately, and shall communicate its decision to the trade union negotiating committee in its response to the draft collective agreement.
Article 152 quinquies I.- The Directorate of Labour shall monitor, within the scope of its competence, compliance with the rules of this Chapter, especially the obligations set out in Articles 152 quater Z and 152 quinquies E. Offences in this regard shall be punishable by fines referred to in Article 506, which shall be doubled in the event of recidivism. ".
Transitional arrangements
And for I have had it good to approve and punish it; therefore, promute and take it into effect as the Law of the Republic.
Santiago, March 8, 2022.- SEBASTIÁN PIÑERA ECHENIQUE, President of the Republic.- Patricio Melero Abaroa, Minister of Labour and Social Security.- Rodrigo Cerda Norambuena, Minister of Finance.- Gloria Hutt Hesse, Minister of Transport and Telecommunications.
What I write to you for your knowledge.- Fernando Arab Verdugo, Assistant Secretary of Labour.
