Rappi, Glovo and PedidosYa, flagship applications of the so-called new economy, suffered this week a severe legal setback that not only puts their business model in check, but also puts the vicissitudes of the type of work they offer on the table again.
Uber has already experienced it in its own flesh, with a legal conflict that has been going on for years and that, in full 2019, still seems far from being solved, although it has not prevented it from continuing to operate in the country. Now, it was the food delivery people's turn.
Through a ruling, Judge Andrés Gallardo ordered the Government of the City of Buenos Aires to immediately prohibit the activity of the firms Rappi Argentina, Glovo and Pedidos Ya, until they prove they have complied with the requirements included in the Transit and Local Transportation Code.
He also demanded that they design and execute an economic and social contingency plan for all the distributors of the firms involved, which compensates for the reduction of their income until the situation is normalized, through the Ministry of Human Development and Habitat. According to the magistrate, these services are carried out "in clear violation of current regulations".
According to Gallardo, the service must remain "stand-by" until the following regulations for cyclists and motorcyclists are ensured:
- Let everyone circulate with a helmet
- That everyone has life and accident insurance and a health booklet
- That the object box is anchored to the motorcycle or bicycle and not on the back of the driver
- That rolled vehicles have adequate minimum signaling (light and refractory)
The decision was based on a survey of the City Police on 400 cyclists, who reported the following:
- Almost 80% circulate with the slide as a backpack
- Seven out of ten do not have insurance
- Two thirds of the delivery people do not wear a helmet
On the other hand, the Health Ministry of Buenos Aires warned that there is almost one injured delivery person per day (25 per month) that should be treated in Buenos Aires hospitals.
The controversy, as in these cases, did not wait. The responsibility of the companies and businesses with whom they deliver is complex.
The apps tend to be presented as mere "intermediaries" between users, businesses and delivery people, thus dissociating themselves from any responsibility. On the business side, something similar happens: they claim that they have no direct relationship with the latter, but interact through a third party.
What, then, is the responsibility in each case? Can the platforms order the "factureros" to stop working, since they are not in a dependency relationship?
Although the ruling establishes the immediate cessation of the activity, in practice it becomes quite difficult to complete.
The opinion of the specialists
For labor lawyer Juan Carlos Cerutti, the answer is clear: the apps can order the suspension of deliveries in response to the court order.
"The distributors sign rules that tell them how to perform their work, Once accepted, they begin to receive the orders, under the stipulated conditions, even the contract specifies how they should interact with the final client," says the lawyer. He adds: "These orders are being distributed through cell phone applications, and if they are not followed, they are discharged."
For the lawyer, it is necessary to rethink the current legislation. "It is not possible that they continue to operate as they do now, both from the point of view of employment and the safety of people and merchandise handling on the street."
Jorge Grispo, a lawyer specialized in corporate law, tells iProup that the platforms "permanently give orders when they tell delivery people to deliver orders."
"There is a blank work relationship, in black and no work relationship, from an external advisor, under the figure of a monotributista, for example, a consultant who provides a service, ends it, bills it and concludes its relationship ", Add.
"In the case of delivery, there is clearly a black labor relationship, so the judge issues an order based on the assumption that there is a labor relationship of that type," says Grispo.
In his vision, "the company can clearly tell the delivery people not to work anymore." If he takes a different position (under the argument that they are not in a dependency relationship, and thus fails to comply with the court order), a purchase is made. big problem, since the judge is going to accuse her of contempt. "
Regarding the businesses, Grispo considers them also responsible and cites an antecedent: "There is an old plenary session, 'Rodríguez against Pepsi Cola', which ordered the company to pay the compensation of a freighter hired by a transport company that was distributing gaseosas, on understanding that their task completed the distribution chain ".
A possible solution, says the lawyer, is for the Executive to take action on the matter, taking out a regulation that regularizes the situation and gives it a legal sustenance. "The Government should move in this direction because the delivery workers need to work, the main problem is labor legislation, which punishes the employer," he stresses.
For its part, the labor lawyer Solana de Diego refers to the details of the ruling and points out that there is "a kind of lightness about what are the security measures that are being infringed".
"The court order is aimed at digital platforms, but they publish in their pages that the delivery people do not have exclusivity." Based on this consideration, the lawyer ensures the measure "is arbitrary, because it goes against companies and not cyclists."
In that sense, he argues that "the Executive Power and the Legislative Power must act to stop these judicial decisions that threaten employment." Who compensates the businesses that lose sales? The apps are a virtuous circle of increased consumption. business invoices more thanks to the riders ".
Meanwhile, Guillermo Navarro, lawyer specialized in Law and Technology, clarifies that, in the line of Uber, the resolution only has effect in the City of Buenos Aires, and that the problem is not the regulation but "the business model and the usability of the platform. "
The expert clarifies to iProUP that "the companies are responsible and should be sanctioned, the problem is that it is not a pure employment relationship and that is where the situation gets complicated".
"What happens can not be resolved by a contentious administrative judge, because it only has jurisdiction in CABA, nor can it demand that the City be responsible for the cost of people who are not providing the service for a suspension," he adds.
Navarro also refers to the ambiguous relationship established between the apps and their riders: "Even if the employees are autonomous, the platforms can lower some parameters, there are no disciplinary sanctions, but contracts can be canceled for faults".
In another order, the lawyer emphasizes that the judge can not block the application, "since it could affect the rights of third parties that do not belong to its jurisdiction."
The new platforms have generated debates around the security and the labor benefits of those who decide to join as workers to their proposals.
In addition, they have put on the table the complex legal framework of services where outsourcing is the rule and where justice has not yet known how to adapt to the new work schemes.
"There are many questions about technology that are not covered, which does not mean that the work of the delivery people should be banned, as if we had banned electronic commerce in 1997," Navarro concludes.
