The elements of labor in digital platforms in the light of Chilean labor law jurisprudence

Abstract

This paper aims to analyze the existence of the classical elements of labor in digital platforms, as a result of the incipient case law emanating from the specialized labor courts, limited to the Chilean experience. The analysis that is structured in the sections of this article works on the basis of two basic premises; the first one is related to the incursion of digital platform companies in the national market and the way in which this phenomenon came to question the effectiveness and power of subordination or dependence as a configuring and unequivocal element, with certain consensus, of the existence of an employment relationship, since this figure would not have been sufficient to provide due protection to those who perform functions through digital apps. Secondly, it is recognized that Labor Law and its normative scope is a changing branch of the law, which delimits its field of action as the labor relationship evolves, being, therefore, a reactive regulation to the social, economic and in this particular case, technological changes, which prevail in a society and at a given time. This particular but at the same time logical way of operating, developed by Labor Law, leads us to the urgent need to determine how the rights of those who work via digital platforms are protected, safeguarded and guaranteed. In this context, we will try to determine the role played by the labor courts in this possible exercise of “flexibilization” of the concept of subordination or dependence, taking as a basis for analysis the jurisprudential development that has been observed in the actions filed in the competent courts, which seek the declaration of the existence of an employment relationship of those who perform functions for digital platform companies.