Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Home Work Convention, 1996 (No. 177) - Argentina (Ratification: 2006)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of the Confederation of Workers of Argentina (CTA) and the Industrial Union of Argentina (UIA) received on 30 September and 1 October 2020, respectively. The Committee requests the Government to send its reply in this regard.

Promotion of telework. The Committee notes the adoption on 16 March 2020 of Decision 2020-207-APN-MT, which promotes telework for national public sector workers, except for essential service workers, and recommends that private enterprises operate at a minimum staffing level and adopt telework. On 16 March 2020, Decision No. 21/20 was also adopted, which provides that employers allowing employees to work from their private homes must inform their occupational risk insurer (ART) of the address where the work will be performed and the frequency of that work. That address will then be considered as a workplace under the Occupational Risk Act. In addition, the Committee notes the supplementary information provided by the Government. In particular, it notes with interest the adoption of Act No. 27555 of 30 July 2020 (hereinafter Act No. 27555) regulating telework. Section 2 of Act No. 27555 provides that contracts are considered as telework contracts “where the completion of activities, performance of work or provision of services (…) is carried out entirely or partially in the home of the worker, or in locations separate from the premises of the employer, through the use of information technologies.” Section 2 also provides that the minimum legal requirements for telework contracts shall be established by a special law, while activity-specific regulations shall be established through collective bargaining. The Committee also notes that Act No. 27555 provides that workers on a home work contract have the same rights and obligations as those working on site (section 3), including the rights to freedom of association and collective bargaining (sections 12 and 13) and protection from occupational risks (section 14). Section 3 also provides that the wages of workers engaged in telework must not be less than what they would receive for on-site work. Section 4 provides that working hours must be agreed in advance and in writing, in accordance with the legally established limits. Act No. 27555 also regulates the right to digitally disconnect (section 5), the option to amend working hours to provide care in certain cases (section 6) and the right to receive training (section 11). The Act also establishes a number of obligations for employers, such as the obligation to provide the equipment, tools and support necessary to perform the work, and to reimburse any connectivity and/or service consumption costs that workers might incur as a result of teleworking (sections 9 and 10). Lastly, Act No. 27555 provides that the transfer of workers from on-site work to telework must be voluntary and agreed in writing (section 7), and can be revoked by the worker at any time (section 8).

The Committee notes that, in its observations, the CTA emphasizes that, while Act No. 27555 includes the rights and obligations established in the Convention and in the Home Work Recommendation, 1996 (No. 184), the effective exercise of these rights is problematic in practice, since they depend on collective bargaining conducted at a later stage. In addition, the CTA maintains that the effective enforcement of the obligations is subject to subsequent regulation by the competent state bodies. Moreover, the CTA indicates that the Act considers telework as a new employment contract (section 2) and not as an arrangement or option available to the employer for organizing work under the Employment Contracts Act (Act No. 20.744). The CTA also states that including the option of working by objectives (section 4(1) of the Act) renders the right of the worker to limit working hours (section 4(2)) and to disconnect (section 5) null and void in practice. With regard to occupational safety and health, the CTA maintains that section 14 of Act No. 27555 undermines the protection of workers, as it provides that accidents that occur at work are “presumed” to be occupational, while the Occupational Risks and Accidents Act (No. 24557) currently in force provides that such accidents are “deemed” to be occupational. The Committee also notes the CTA’s indication that Act No. 27555 expressly provides for its entry into force 90 days from the eventual end date of the social, preventive and obligatory isolation period established by Emergency Decree No. 297/2020 currently in force, and that, consequently, it is impossible to determine when the Act will enter into force. The CTA emphasizes that, although the number of workers engaged in telework has increased exponentially during the pandemic, their working conditions are unknown. As the Act is not yet in force owing to the extension of the social, preventive and obligatory isolation period, employers have unilaterally established the parameters for teleworking, without any kind of public oversight. The CTA indicates that the only exception in this regard has been the signing of the “Agreement regulating telework under the COVID-19 (coronavirus) pandemic restrictions” between the judiciary of the province of Buenos Aires and the Judicial Association of Buenos Aires, which remains in force only during the social, preventive and obligatory isolation period. The CTA also maintains that there is no register of workers engaged in telework either prior to or during the pandemic, contrary to the guidance provided by Paragraph 7 of Recommendation No. 184.

The Committee notes the UIA’s statement that the brevity of the legislative process by which Act No. 27555 was adopted did not allow for an effective social dialogue process to be held. The UIA indicates that, in the discussions held during the adoption process, the employer organizations expressed deep concern over various provisions of the Act that were difficult to apply in practice and that, moreover, were contrary to international labour standards. In this regard, the UIA indicates that Act No. 27555 does not establish an objective criterion for determining when remote work is considered as a contract performed under teleworking arrangements and when it is considered as work occasionally performed remotely, which is excluded from the regime of home work under the Convention. Furthermore, the UIA is opposed to the prohibition in Act No. 27555 against contacting workers outside of working hours (section 5(2) of the Act), and the obligation of the employer to have a system in place that prevents communication with workers outside of their working hours (section 4(2)). Lastly, the UIA refers to section 17(1) of Act No. 27555, which provides that in the case of transnational remote work, the national law applicable to the work contract is either that of the country where the work is performed or that of the country where the employer is domiciled, depending on which is more favourable to the worker. The UIA also refers to section 17(2) of the Act, which provides that collective agreements (concluded under section 2 of Act No. 27555) should establish a maximum number for these contracts. In this regard, it considers that cases in which Argentine law would not apply would contradict the territoriality principle established in the Employment Contracts Act (Act No. 20.744) and create a situation of legal uncertainty that could undermine compliance with international agreements. The Committee requests the Government to send detailed and updated information on the application in practice of Act No. 27555 of 30 July 2020, including the date of its entry into force, and updated statistical information on the number of workers that have begun to telework, disaggregated by age, sex and sector, and on the number of collective agreements concluded under section 2 of the Act. The Committee also requests the Government to send information on the manner in which the right to limit working hours and to disconnect is ensured. Recalling also that telework can be a useful means of enabling access to employment for individuals who sometimes face greater obstacles in this regard (such as young people, women, persons with disabilities and older people), the Committee requests the Government to provide information on the impact of Act No. 27555 on the employment of such individuals.