New Labor Paradigms in Digital Platforms

Modifications and technological updates have had a worldwide impact by creating new business models and raising questions that can be examined from different perspectives.

On October 5, 2018, the 19th American Regional Meeting of the International Labour Organization finalized, after many debates on this topic had been held. We would like to highlight that the "Panama Declaration for the ILO Centenary: The future of work in the Americas” establishes the need to develop, among others, (...) policies to respond to new and diverse forms of employment created by technological revolutions and new business models (...).

Although this is a phenomenon with a global projection, we  note certain parameters from the Argentine labor law perspective, which provide a preliminary response to the concerns regarding the characterization of the relationships that these new technologies have generated. It is our understanding that there is no single answer applicable to all cases in a generic manner.

Specifically, it is currently being debated whether the relationship between service providers and the owners of digital platforms constitutes a commercial relationship or if there is an underlying employment relationship; in which case, the obligations derived from said employment relationship should be fulfilled.

While the commercial relationship as service provider is defined by the characteristics of entrepreneurial autonomy and assumption of risks, the labor relationship implies a different scenario, in which the employee has express obligations to comply with the orders and instructions regarding the manner in which work is performed (...), and to “abstain from executing negotiations on their own behalf or on behalf of others that could affect the interests of the employer, unless authorized by the latter, (...), without assuming the risks derived from the development of the employee’s duties and responsibilities, except in cases of liability for damages caused to the employer due to fraud or serious fault in the performance of the employee’s duties.

Additionally, Argentine labor regulations expressly refer to: (i) contracts by means of which situations of simulation or fraud in labor law have been created, establishing the nullity of this type of agreements; (ii) factual situations that evidence the existence of an employment relationship, by application of the principle of reality, defining the employment contract by virtue of the execution of acts, works or services in favor of another person under dependency, receiving a remuneration; and (iii) the presumption of the existence of an employment contract as a consequence of the provision of a service, even when non-labor figures are implemented.

Preliminarily verifying the conditions under which the provision of services is developed in the new digital platforms, we consider them as new ways of relationships with specific particularities of their own, which are not completely similar to the regular concepts of independent service provision or labor relationship. In this regard, the determining elements of an employment relationship, including legal and economical subordination, interpreted in their traditional terms, are not in principle necessary requirements for the provision of services through digital platforms, though they can be evidenced in certain cases in practice; and in that context the current labor regulation should be applied.

This matter allows for different interpretations, but we understand that in the current applicable context the determination of the existence of an independent service location or an employment relationship will depend on the specific and factual analysis of each case in particular, and there is no determination that appears applicable in a generic way.