The distributors of the applications Rappi, Glovo and PedidosYa burst last year in Argentina and modified the landscape of the main cities of the country with their bicycles and motorcycles circulating in the main streets.
Quickly, the business started to flourish. The managers of these platforms ensure that orders are growing at a rate of 25% per month. Cyclists crowded into the restaurants - at noon and at night - are already part of the daily postcard, waiting for a user of the app to require a delivery.
Once this happens, they start a race against the clock through the streets to arrive in less than 35 minutes, dressed in their refractory suits that not only reflect their presence at night, but also the absence of a clear work environment. And, as expected, the conflicts were not long in coming.
The workers assure that they maintain a dependency relationship, despite the fact that both Rappi and Glovo demand that the distributors bill their services and that they are enrolled in the Monotributo.
Time went by and, far from the waters quieting, they began to stir. The delivery decided to unionize, under the Association of Personnel of Platforms (APP), and demand the same benefits foreseen in a dependency relationship: plus holiday, contributions to social work, bonuses, sick leave, among other points.
The problem is that if these companies start operating under the Labor Contract Law, they run out of business. In fact, this is what happened with PedidosYa, the only one of the three that had personnel on the ground: it could not support this scheme and had to dismiss 450 of the 1,100 delivery drivers.
Taking that decision, what happened was known to happen: quickly entered into action the Trade Union Association of Motorcyclists, Messengers and Services (ASIMM), which now claims the guardianship of all delivery and has the endorsement of none other than Hugo Moyano.
In the last hours, the trucker leader supported the protest of the union "motoquero" at the doors of PedidosYa -in the street Gurruchaga to 1700- which asked for "the reincorporation of the totality of the cesantados". Moyano himself went out to mark the court: he raised ASSIM's thumb and simultaneously displaced the geographic axis of the protests.
So far, the epicenter of the mobilizations was located 20 blocks from there -in Castillo and Darwin-, headquarters of Rappi. There APP was born, which achieved the first achievement in courts: Justice demanded that the company reincorporate the workers who had blocked the application for union activity.
Beyond setting a precedent, the law is not clear about this new way of working that brings the "digital economy". Therefore, the differences between the labor lawyers of the country grow, which are grouped together in the two districts, although they agree on the need to update the legislation.
Employees or self-employed
Technology revolutionized the way things are done. The trade found new ways to sell, cultural industries are discovering ways to distribute content and even the automotive companies are preparing to be service providers.
In this framework, the "economics of apps" does not have a legal framework that covers the new work modalities. Therefore, there are conflicting versions of what should be considered employment in relation to dependence and autonomous work.
"The whole environment of the claim is ill defined, because these platforms move within a context that is called 'collaborative work', in which the app is a mere intermediary between the riders, who are self-employed, and the shops, through these platforms sell to a greater number of customers, "says Solana de Diego, Julián De Diego y Asociados.
The lawyer argues, in dialogue with iProUP, that "we are not talking about workers in a relationship of dependence, but self-employed who set their own hours, choose when to connect, what to take or refuse and do not receive any type of disciplinary sanction."
In the opposite street, they emphasize that this figure is not present in the local law, so it would not be applicable and companies are clearly in default.
"There is no 'collaborative' work in Argentine legislation, it is collaborative when it does not represent normal or regular work and, moreover, it is not done for the same company," says labor law expert Juan Carlos Cerutti.
In this sense, the lawyer emphasizes that "we must analyze what to do with this model", because currently "it is an unregistered work relationship" and these companies "are in fraud with the current law". As an example, he says that "in Australia, France or England they understand it that way".
Another point to take into account is the operation of this type of applications. Specifically, if they monitor that the dispatchers meet the schedules and if, based on that, they can block them. It is an attribution that not only contradicts the slogan of "be your own boss" professed by these companies but also validates another of the premises that validate a dependency relationship.
From the other path De Diego focuses on two aspects:
1.- "Having freedom of contract, the application can accept, select and start a contract with that rider, it is not a sanction system"
2. "The dealer accepts a civil and commercial contract, not labor", while the users qualify a trade and not the cyclist
Cerutti does not share the sayings of his colleague. Remark that:
1. "The algorithm is managed by the company itself, which is the one that decides whether or not to drop a cyclist".
2. "The applications make a unilateral control of the relationship, in which they can not only accept cyclists or not, but also terminate the link."
Remember that for the application, a person must fulfill certain requirements: have a motorcycle or bicycle, a cell phone and pay on consignment the box and clothing. It also ensures that it is the platforms that manage the money.
"If you call a Rappi and pay it with a card, they manage the funds and, in a certain amount of time, they liquidate what the salary would be.In addition, the distributors have a debit card issued by the company to pay the restaurant the requests of the people, "explains Cerutti.
For his part, De Diego points out that there is no employment exclusivity, another of the arguments put forward by the workers to ensure that it is a disguised dependency relationship. "It's as if the taxi drivers who use the BA Taxi app are considered employees of the City Government," the attorney explains.
This same dichotomy is manifested by the Association of Labor Lawyers (AAL), although with nuances. They explain to iProUP that the hiring of platforms show certain "characteristics of self-employed workers":
- They provide part of the means of production (vehicles, for example)
- The discretionary choice of time in which they perform the task of distribution
- An important degree of independence in the way of providing the service
But they also clarify that there are other items that should be considered and that, "because of their weight and relevance", they place the distributors closer to the typical "dependent" scheme.
"In the first place, the service provider joins an outside organization, the platform that mandates mandatory compliance rules, against which the worker has only one option: to comply with them or not to work," they say.
Secondly, they emphasize that when the delivery person makes this task his usual activity, "it is unquestionable that he will maintain a significant degree of economic dependence with the service organizer".
But not only that: some lawyers say that, in the event that a delivery person gets an accident, the restaurants or other businesses for which they deliver will be jointly and severally liable in the event of a litigation or an accident on public roads.
According to Cerutti, "distributors will be able to sue both PedidosYa as well as the trade with which they regularly worked," since they usually spend much of their working time in these stores.
On the other hand, the expert points out that this responsibility is not only related to the payment of employer contributions, but that both businesses and applications must respond to an accident suffered by delivery people.
"Solidarity applies to salaries, that is, compensation, salary and fines for unregistered employment, and for union debts, social work, contributions and contributions, including those arising from work accidents," he explains to iProUP.
What comes
As background of the controversy among labor lawyers, the guild arc also analyzes the most convenient way to represent the thousands of delivery people. Indeed, ASSIM and the recent PPP strive to protect this sector.
On the latter, De Diego criticizes that a court has accepted the claim that led to the injunction, because "it is taken as valid the existence of a union that would be representing self-employed workers."
He adds that the labor justice is acting "against the freedom to hire self-employed personnel and micro-entrepreneurs," and considers that it is a source of quick employment for those who are unemployed.
The lawyer specializing in labor issues Juan Martín Gallo adds: "The first question to be defined is whether or not we are in the relationship of dependency and the type of representation", so it does not rule out "problems of union existence", since other unions they can claim that title according to their main activity.
Against this background, all the experts consulted say that a new labor legislation should be debated to replace the current Labor Contract Law, which dates back to 1975, several years before the launch of the first IBM personal computer that lit the wick of the technological revolution.
"It is a standard for a factory era in which a worker entered a company, worked 30 years in the same place and retired, you need legislation that protects the employee and take into account the employer," says Gallo.
In his vision, "we are faced with the dilemma of having nineteenth-century legislation and a problem of 2020. We need a rule that allows creating more employment, but that protects the worker in a modern way."
In the same line, De Diego remarks that a regulation should be generated quickly, which "would stop any type of claim in the workplace, since there are many evidences that it is commercial relations."
For labor, should aim to a regulatory framework in which for the worker of these platforms are not included all the characteristics of a full professional but neither those of a dependency relationship.
Meanwhile, the delivery continue pedaling against the clock to take orders in less than 35 minutes. On their backs they carry their thermal backpack and one of the most complex issues that the collaborative economy or the work "4.0" brings.
