28 April 2022 is the International Labour Organization World Day for Safety and Health at Work. On it, Ius Laboris lawyers explore whether and how health and safety rules in their jurisdictions have adapted to the rise of gig economy workers, in the light of a new law in Chile introducing health and safety duties on digital platform employers.
On 8 March 2022, the Chilean Congress enacted a law regulating digital platforms employees' employment contracts (Law N°21.431, the 'Law'), regulating digital platforms employees' employment contracts. This new Law, which will enter into force on 1 September 2022, tries to regulate the widespread phenomenon that new business models created by digital platforms have brought to the labour market and employment relations systems. Here we highlight one of the main issues with these modern work systems the new Law seeks to resolve: employees' health and safety rights.
The Law has defined digital platform employees as workers who perform personal services, either on their account or for others, being those services requested by users of a digital application managed by a digital service platform company (article 152, quarter Q (b)). The same article distinguishes between independent and dependent digital platform employees depending on whether the requirements set out in Article 7 of the Chilean Labour Code are met, that is to say, subordination and dependence. Under the labour law system in Chile, subordination and dependence have been understood as the power of command, direction, control, and supervision exercised by an employer over an employee, either directly or indirectly, by giving orders to the employee and by exercising disciplinary power when the employee commits misconduct (Lanata Fuenzalida, 2009).
Regarding those dependent workers' health and safety rights, the general rule contained in article 184 of the Chilean Labour Code applies. This rule establishes a general obligation on the employer to take all the necessary measures for the effective protection of the life and health of its employees by:
- informing them of the possible risks;
- maintaining adequate health and safety conditions at work; and
- maintaining the necessary equipment to prevent accidents and occupational diseases.
In addition to these duties, the new Law establishes specific obligations on digital platform employers that offer on-demand services. Article 152 quarter T imposes a protection duty on the employer regarding the safety and health of dependent digital platform employees. Under it, the employer must inform the employee in writing of the risks related to their services, preventive measures, and the correct working methods on a case-by-case basis. It is noteworthy that this duty does not apply to independent digital platform employees.
Nevertheless, this new regulation does establish general rules regarding the health and safety of both kinds of employees. The digital platform will be obliged to provide appropriate training, in good time, to dependent and independent workers considering the safety and health criteria defined by the competent authority for the activity being undertaken. These criteria have not yet been set by the Labour Authority, and it will be necessary to wait for further pronouncements and rulings.
Moreover, the employer will be obliged to provide the material means to protect the health of dependent and independent employees when providing services using a motorbike or bicycle, such as helmets, knees, and elbow pads. The digital platform company will also be obliged to take out damage insurance to protect personal property used by the worker in the provision of the service, with a minimum annual coverage of 50 Inflation-Indexed Units (approximately USD 2,032).
However, in practice, the fact that there are two possible forms of digital platform worker status may render the 'dependent' category obsolete. Digital platforms may adjust their relationship with workers in such a way as to avoid any indication that they should be classified as employees. If this happens, the proposed health and safety measures will be ineffective to protect these new kinds of workers.
Therefore, while the Law is a step forward as it guarantees a minimum level of protection and safety to 'gig' workers, who are widely recognised as vulnerable, the fact that it still ascribes the concept of subordination and dependence to an atypical employment relationship could undermine this. This conflict may generate the effect it seeks to avoid: uncertainty, as it will have to be the Labour Courts who determine whether the employment relationship elements of subordination and dependence are present, and therefore to what extent the platform has a duty to protect the health and safety of those employees.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.