Lawmakers propose six forms of remote work in Guatemala 

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By LatAm Reports Editorial Team

An initiative called the Teleworking Act establishes six forms of this type of labour mobility, as well as specific obligations for workers and employers, who in any case must agree when defining contractual obligations.  

The bill already enacted positively in Congress, the initiatives identified as 5764 and 5781 were unified, which on the same subject matter were presented in 2020, during the first year of the covid-19 pandemic.

The legal framework was adopted in the first debate in November 2021 and resumed in second debate by the current legislature in the last week of February 2024.  However, sources consulted indicate that there is a need for discussion with expert sectors of labour legislation and those affected, which would for the most part be private companies.

Opinions about their content and scope are varied. There are criteria in which it is considered sufficient already in the Labour Code or that in any case it should be developed within the same Code. Other people believe that having a specific law provides more certainty for the sectors for its implementation.

According to article 4 of the bill, 6 forms of teleworking divided into two classifications are established: depending on where the work is carried out, it may be:

Autonomous, which is carried out at the home of the teleworker or in a particular place.

Mobile, it’s itinerant. And additional, which in certain days will adopt the autonomous or mobile modality and in other face-to-face mode.

Three modalities are also classified according to working hours:

Connected, it is the effective working time when the teleworker remains under the orders of the employer, permanently connected and subject to any form of control.

Disconnected, when he remains under the orders of the employer and Ieva carries out his activities with a non-permanent connection during the work. And, Partial, which is the time determined on a voluntary basis in the employment contract.

On the other hand, Article 5 states that teleworking is voluntary for both the worker and the employer. Both parties may agree in writing to amend or revoke the modality in the terms provided for, without implying a change in the substantial conditions of the employment relationship, and under the observance of the labour legislation in force.  

In addition, the initiative states that the purpose of the law is to promote and regulate teleworking as a labour modality and to stimulate employment generation and modernization of labour relations, through the use of technology, and that the provisions are applicable to labour relations in both the public and private sectors.

As for working hours, they do not specify and indicate that they can be executed in the parameters established by the Constitution and current legislation, as well as the individual employment contract. However, it indicates that regardless of the limit of the work jody – the right of disconnection of twelve (12) continuous hours is guaranteed to the teleworker.

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Fanny D. Estrada, director of institutional relations of the Guatemalan Association of Exporters (Agexport), said that the form of work at home is being created, which comes to alleviate mobility a little in a city like Guatemala where many hours are invested in transit.

The central objective of having such a law is to regulate the employment relationship and the responsibility of both parties, where it can be applied. This modality can be autonomous or itinerant and in addition, it is important because it can also be applied for part-time, which can be a great benefit,” he added.

The executive states that it must be clear that timetables must be met and companies can establish mechanisms with technology that facilitate such control, and another important part is that it is voluntary and both parties have the right to return to face-to-face activity.

Another point he described as relevant is that the right to the disconnection of 12 continuous hours is guaranteed, because it is not convenient for a person to be beyond 12 hours connected. D. Estrada said that one of the benefits for the country is that it provides legal certainty to the industrial relations that develop in this modality.

Asked whether they consider it necessary to establish a teleworking law, the directive said there are two opinions: some think that the Labour Code is sufficient, and others consider that industrial relations are changing for technology and telecommunications.

“We think that in the world of more modern relations this is a very useful tool and it is good to leave the conditions for both sides,” he said.

However, he mentioned that aspects such as workspaces at home; the evaluation of worker performance supervision; confidentiality and proper management of information; hours, hours, days and risks should be clarified. 

Finally, he emphasized that all these regulations should be consulted with those who will use it. These modalities are convenient for the worker and for urban mobility, but you can’t get legislation out without first seeing how they’re going to impact the affected parties,” he said.

In addition, Luis Linares, an expert in labor issues at the Association of Research and Social Studies (Asíes), explained that the proposal should return for discussion because it was prepared without taking into account the concepts of Guatemalan labour legislation and creates confusion regarding definitions, in addition to that the hours of the working days established in the current law could be violated.

It refers to the worker working from home or a telecentre as self-employment, but that the second word is used in the country to define independent or self-employment, which could cause confusion about the employment relationship between employer and worker.

Linares is of the criterion that the Labour Code already regulates aspects of teleworking in Chapter Third of Title Fourth which refers to special regimes such as home work. Moreover, instead of creating isolated laws such as this proposal, this topic should be developed within the Code itself.

Then what needs to be done is to avoid the dispersion of the laws, because the idea of the codes is to have integrated the regulation of the same matter in a single legal body. In addition, it should be remembered that not every job is teleworking, but it is only one modality.

Then, he suggested that the concepts of connected, disconnected and partial teleworking be clarified to prevent the working days established by the Code from being violated, since it can cause only the hours that it is connected to the computer within the working hours begin to begin, and to be told that you have to leave an hour later.   

On the other hand, it recommended establishing a non-control that is not so invasive and clarify under what conditions the equipment is given to the worker and take into account the conditions and wear and tear by the use.

Linares believes that the Tripartite National Commission on Labour Relations, freedom of association, or the Ministry of Labour (Mintrab), to which Prensa Libre requested his position, was not consulted, but did not respond.

Rights and obligations

The initiative clarifies that the law only amends the organization and the way in which the work is carried out, so it does not affect the obligations, rights and other labour guarantees recognized in the national regulations in force, according to article 9.

And they will enjoy social security rights and obligations in the same way as workers in person, receiving equal treatment in matters of remuneration, training, training, access to better job opportunities and others, according to articles 14 and 15.

However, two types of special obligations are created for the worker and for the employer:

The employer must provide the teleworker with the equipment, tools, programs, platforms, systems and any other type of information and communication technology indispensable for its work and training for its proper use.  

Where the employment relationship is developed in a given telecentre, it shall ensure occupational health and safety conditions. The employer is responsible for informing the teleworker about the entity’s data protection policies.

The teleworker must maintain and restore in good condition the equipment provided by the employer, and to safeguard the confidentiality and proper handling of the information used for the provision of its services.

You should also inform the employer about the safety and health risks of their work at the telecentre where it is developed.  The telecentre is the physical space that has the necessary equipment and tools for the teleworker to carry out its activities.

Contracts

Contracts must comply with the requirements of the Labour Code and other provisions in force.

If there is already a contract signed prior to the adoption of the teleworking modality, it must be modified, establishing at least this information and conditions: address of the telecentre (place where autonomous teleworking will perform; description of the equipment, tools, programmes, and others provided by the employer, conditions of computer security, data protection and confidentiality.

Also health and occupational safety measures; scope of responsibility for the custody, protection and protection of work teams and information management; determining the form of teleworking; specific rights and obligations and methods of monitoring compliance with the agreed working day; and others.

Modifications to the contracts shall be recorded in the Mintrab.

This article has been translated from the original which first appeared in Prensa Libre