Labor & Social Security Law Department Report | Regulation of Act No. 27,555 “Legal Regime of the Remote Working Contract”
On January 20, 2021, Decree No.27/2021 was published in the Official Gazette by which the regulation of the Remote Working Act No.27,555 (the “Regulation”) was approved.
The most relevant items of the Regulation are the following:
i) Aim: The provisions of Act No. 27,555 will not be applicable:
• when the rendering of services is carried out in the offices of the clients for which the employer renders services on a continuous or regular basis.
• when the services are rendered occasionally or sporadically at the employee’s home, either upon request of the employee or due to an exceptional circumstance.
(ii) Right to digital disconnection: The sending of communications outside working hours will be allowed, only in those cases in which the activity of the company is carried out in different time zones or in cases where it is essential for some objective reason.
In this case, employees will not be obliged to answer until the beginning of their working day, except in cases of force majeure or exceptional demands of the national economy or of the company (Section 203 of the Employment Contract Law).
No incentives may be granted conditioned to the non-exercise of the right to disconnect. Overtime payments will not be considered incentive payments.
(iii) Care tasks: When exercising the right to interrupt the rendering of services due to reasons of caring for people under the age of 13, disabled people, or senior citizens under the terms of the Remote Working Act, employees must communicate virtually and precisely the start and end times of said inactivity. In the cases in which the care tasks do not allow to comply with the current, legal, or conventional working hours, their reduction may be agreed according to the conditions established in the applicable Collective Bargaining Agreement.
No incentives may be granted conditioned to the non-exercise of this right.
(iv) Reversibility: The consent given by the individual who works in the employer’s office to switch to a remote working modality may be revoked by him/her at any time during the relationship, but it must be done within a framework of good faith, collaboration, and solidarity.
Once the request of the individual working remotely is received, based on reasonable and supervening reasons, the employer must comply with his/her obligation of providing an onsite working space in the shortest period allowed by the situation at the time of the request, which can never exceed the period of 30 days.
When employees have agreed to work on a remote modality since the beginning of the employment relationship, they may not revoke their consent or exercise the right to be granted an onsite working space, unless otherwise provided by the Collective Bargaining Agreements or the individual employment contracts.
(v) Working tools: The granting of working tools will not have salary nature, so it shall not be considered for the calculation of any item of the employment contract, nor for union and social security contributions.
The parties may agree on the guidelines for determining this granting (or compensation in case the employees use their own tools to render services), in those cases in which the relationship is excluded from the application of a Collective Bargaining Agreement.
(vi) Compensation of expenses: The compensation of expenses for those higher expenses of connectivity and/or consumption of services related to the rendering of services, even without receipts, will not be considered remunerative, in the same terms as the provision of working tools.
(vii) Union representation: For the purposes of electing and being elected as union representatives, employees who work under a remote modality will be attached by the employer to the office where they previously rendered services. If the remote working modality is agreed upon at the beginning of the relationship, the attachment must be carried out after consultation with the union entity.
(viii) Hygiene and social security: The Ministry of Labor, Employment and Social Security, through the Superintendency of Occupational Risks, will carry out a study on the applicable hygiene and safety conditions and the eventual need of including the list of professional diseases, those related to the remote working modality.
(ix) Control system and right to privacy: The union participation over control systems aimed at protecting the employer’s assets and information will take place through joint audits, made up of technicians appointed by the union and by the company, guaranteeing the confidentiality of the processes and data and limited to preserve the rights established in favor of those who work under a remote working modality.
(x) Enforcement authority. Registry. Inspection: The Ministry of Labor, Employment and Social Security may delegate to the local administrative authorities the tasks of registering companies that adopt the remote working modality. The information requirements will not reach specific company’s business line data.
The unions will only receive the list of employees who render services on a remote working modality, their registration and deregistration. The obligations provided by collective bargaining regulations are excluded from this limitation.
(xi) Transitional regime: The Ministry of Labor, Employment and Social Security will be in charge of issuing a resolution setting the start date of the calculation of the 90 days indicated for the entrance into force of Act 27,555.
Alvaro J. Galli
María Eduarda Noceti