The reform of Article 311 and the addition of chapter XII Bis was the result of a speedy process that did not take into account the views of the affected parties.
New article 330-A defines teleworking as “a form of subordinate labour organization that consists of the performance of remunerated activities, in a different place than the employer's establishment, [...] using primarily information and communication technologies for exchange of information and control between the employee and the employer”.
“In order to be considered as telework, the work has to be performed more than forty percent of the time at his/her place of residence or at the one chosen by the employee”.
Article 330-B indicates what has to be included in the employment contract:
- The use of telework modality;
- General data such as the personal data, salary and form of payment;
- The equipment and tools that will be put at the employees’ disposal, including those related to the occupational health and safety obligations;
- The tools for communication and control, and the working time distribution.
Employers will have the following obligations (Article 330-E):
- Provide, install and take care of the maintenance of the equipment necessary for teleworking such as computer equipment, ergonomic chairs, printers, among others;
- Pay the costs associated with the teleworking modality, including, where appropriate, the payment of telecommunication services and the proportional part of electricity;
- Grant the right to disconnect;
- Record employees teleworking in the social security registry.
Also, the modality of telework must be part of the internal work regulations and/or the collective agreement.
Employees will have the following obligations (Article 330-F):
- Take care of the equipment and tools provided by the employer;
- Respect occupational safety and health instructions by the employer;
- Make use of the working tools that allow the employer to exert a proper supervision;
- Respect the company policies on data security and privacy.
The Secretary of Labor has a maximum of 18 months to publish a catalogue of new work-related risks associated to the teleworking modality.
From an employers’ perspective, the reform is not deemed necessary. Fernando Yllanes, President of the Social Security and Human Resources Commission of the Confederation of Industrial Chambers (Confederación de Cámaras Industriales – Concamin) said that “the law has already its specific regulations for workers, depending on the place of work and working conditions”. He also commented that “this law will increase uncertainty as it introduces new employers’ obligations that are not easy to grasp, such as the payment of electricity in proportion where appropriate”.