Concepción Labor Court recognizes employment relationship between Orders Now and the delivery person, and opens strong debate

Among the main arguments and in addition to ensuring that the labor relationship “is born into legal life when the elements that make it up are brought together, regardless of the qualification that one or both parties may give it,” he points out that there were elements that gave rise to a relationship of this type.

In fact, it points out that as in any other traditional job, the complainant had to go through a selection process and once admitted had to wear the company’s own uniform and also had to comply with a schedule predefined by the employer, in this In the case of the web platform, all these being normal practices of any work activity.

“It is possible to observe that in said summary there is a record of the hours that the actor stayed connected to the application (…) since the actor was not free to choose any shift or to alter it, since he could only choose within of those proposed by the defendant ”, the text supports.

The foregoing, adding to other elements provided by the plaintiff, establish, in the judgment of the judge, the subordination and dependence of the distributing partner.

Consulted OrdersYa, assured that it has already been notified of this ruling, “resolved in the first instance, which will be appealed for not being entirely clarifying. OrdersYa has opted for constructive dialogue with the authorities, with the aim of continuing to promote the development of the ecosystem and continue creating opportunities for businesses, distributors and consumers.

Another noteworthy element within the ruling and that could end up rekindling the debate around the recognition of the labor link between this type of digital platforms and their collaborators, is that although it is noted that the essential element to determine the employment relationship is the contract of work, also suggests advancing in other ways of conceiving the provision of a service.

“The classic idea of ​​the worker who provides services within a specific physical place with a boss or supervisor with whom he interacts directly, who regulates his work and to whom he must report within a specific time previously agreed and in writing (…) must be overcome precisely by the existence of these technological platforms whose dynamics are completely different, where the bond of subordination and dependence is manifested but not in the traditional way “, indicates the judge.

In this regard, Francis Reyes, director of the RCZ Abogados labor group, assures that the ruling indicates that in the specific relationship of the app with the complaining worker, there were certain causes that establish a dependency relationship.

“If companies want to avoid prosecution by distributors in terms of the contractual relationships they maintain, they must reduce the amount of control they exercise over them, the ultimate issue that will imply that a homogenization in the quality of the service delivered occurs in the market for the different applications ”, he assured.

“Obviously, for the sector it has a considerable impact, since it will have to consider an associated cost that it did not have before, such as the surcharge for social security in the remuneration paid to distributors. In addition to what was explained above, employers will be obliged to adjust their contracts to a new -labour- regime to avoid fines or penalties, “adds Diego Messen, partner of Moraga y cia.

Despite the fact that it is a ruling that could change the way in which labor relations are conceived, experts remain cautious. The lawyer of Peñaloza Gestión Legal de Personas, David Oddo believes that qualifying the existence of an employment relationship is a matter that must be analyzed case by case with the particular background of each situation.

That is why it insists on the need to “quickly define some type of regulation at least in terms of social security protection with respect to technology platform providers.”

Second to what was said by his peer, the former director of Labor, Marcelo Albornoz, although he acknowledges that it is forceful, also says that “it is a sentence for a particular case” and also, “it is very hasty to conclude that from this ruling all provision of services is per se an employment contract, since it will always depend on how the app implements its services with the people who work in them ”.

In any case, for Albornoz, and very much in line with the message delivered by the judge, the most important element is the degree of freedom that the person has to carry out their functions “and perfectly this type of employment can occur without an I work to the extent that the service provider has said freedom, and is not subject to specific shifts and direct supervision of the company’s people, ”he says.

For this reason, and although he indicates that in his opinion “not every service in the app is automatically labor, in some cases like this, the level of control of the app has clear characteristics of a relationship governed by labor law. In this sense, the ruling is unquestionable ”, he remarks.

When consulted about this ruling, the Undersecretary of Labor, Fernando Arab, says that this is a subject widely debated in the world and on which there is no single criterion.

In this sense, he commented that currently, the Ministry is finishing a work table with actors linked to the world of platforms, and that specifically “it seeks to provide guidelines that allow regulating the work of people who provide services on digital platforms , guaranteeing them certain rights, regardless of the legal qualification that the parties have ”.