On August 13th, a new bill was introduced in the legislative pipeline aimed at amending Article 18 of the Labor Code. Under File No. 24500, titled "Amendment to Article 18 of the Labor Code, Law No. 2 of August 27, 1943. Law to Guarantee the Labor Rights of Delivery Service Providers Through Digital Platforms," the proposal seeks to add a third paragraph that explicitly establishes the presumption of an employment contract for digital platform workers.
Currently, Article 18 of the Labor Code provides:
ARTICLE 18.-
An individual employment contract, regardless of its designation, is any agreement in which one person undertakes to provide services or execute work for another under the latter's continuous dependence and immediate or delegated direction, in exchange for remuneration of any type or form.
The existence of this contract is presumed between the worker who provides their services and the person who receives them.
The bill proposes to add the following:
This presumption also applies to delivery or distribution services for any consumer product or merchandise that a worker performs for the benefit of another person, natural or legal, who exercises the business powers of organization, direction, and control directly, indirectly, or implicitly, over the management of the service or work conditions through a digital platform.
The intent of this third paragraph is to provide greater protection and legal certainty to a segment of digital platform workers who provide geolocated merchandise delivery services, excluding passenger transport without any justification. However, the legislative technique used does not seem optimal for achieving this goal.
Firstly, it is important to note that the case law of the Second Chamber has established that, for the presumption of an employment contract to be configured, the worker has the burden of proving the personal provision of the service; that is, they are the ones performing the duties assigned by the employer. The employer must then demonstrate that other essential elements of the employment relationship (remuneration and subordination) are not met to disprove this legal presumption. In this regard, Decision No. 00130 – 2023, dated January 27, 2023, at 9:30 a.m., of the Second Chamber, stated:
"(…) Now, the cited Article 18 establishes a presumption of labor relationship iuris tantum, in favor of the relationship between the service provider and the person, natural or legal, receiving these services, whereby merely proving the personal provision of the service is sufficient to presume the existence of an employment contract. A legal presumption such as this exempts the worker from the burden of demonstrating remuneration and subordination, requiring only the establishment of the factual basis for personal provision of the service. Once this is proven, the burden to demonstrate a different nature of the relationship, i.e., that the essential labor elements were not present, lies with the employer (…)"
Certainly, there are criticisms of this line of case law, as it has been argued that a difference exists between an employment relationship and a professional services contract; thus, only if the employment relationship between the parties is proven can it be presumed that there is an “employment” contract between them. This interpretation also derives from the wording of Article 18, which explicitly references the figure of the “worker,” who does not attain that status merely by personally providing the service, but only if the elements constituting the employment relationship are demonstrated.
In any case, while the previously established case law remains, it seems illogical that, as proposed in the bill, the presumption would apply to platform workers with an additional requirement not imposed on others: that the service be provided for a person "(…) who exercises the business powers of organization, direction, and control directly, indirectly, or implicitly, over the management of the service or work conditions (…)"This new requirement pertains to those "new" criteria of subordination.
Thus, although the vagueness of the second paragraph has so far allowed the Second Chamber to interpret it in such a way that the worker is required to do nothing more than demonstrate personal provision of the service, assigning the company the burden to prove the absence of labor relationship elements, with the well-intentioned but counterproductive phrase, the worker would now be required to prove subordination for the presumption of an employment contract to apply.
It is clear that this unfavorable interpretation for digital platform workers should not occur to the extent that, applying the more favorable rule as an expression of the protective principle, it would be legally correct to continue applying the second paragraph even in cases involving digital platform workers.
Indeed, since the second paragraph of Article 18 of the Labor Code does not differentiate between digital platform workers and other workers, there is no reason to consider that a driver or delivery worker suing the company they work for should not benefit from the presumption as it currently stands. While the legislative proposal intends to be explicit in its application to these workers, it should be noted that there is a general principle of law that holds that distinctions should not be made where the law makes none. Therefore, this proposal is both unnecessary given the current regulation and counterproductive regarding its potential judicial interpretation.
To avoid unnecessary complications and maintain legislative coherence, one option would be to remove the phrase related to subordination to maintain the same terms as in the second paragraph. It would be sufficient, though equally unnecessary, to stipulate it as follows: "The above presumption also applies to delivery or distribution services for any consumer product or merchandise through a digital platform."
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