At the Digital Crossroads: Trade Unions and the Regulation of Artificial Intelligence in Latin America

Introduction

In the early morning, a woman, having just taken her children to school, sits at home in front of her computer. Surveying the demands of the day, she navigates through a cluttered garage filled with boxes, carefully wrapping items according to the order form. Meanwhile, in a different city, a young man seeking employment, sits in front of his PC, playing a video game offered at a job interview. The young man plays consciously knowing that the video game will judge his capacity to access a new job in terms of skills. This type of video games have become common in some companies, where the make the applicant take decisions and an algorithm will judge his/her leadership, teamwork, capacity to manage crisis, among other skills. Further north, a motorist looks at his phone and rushes to a store to complete a purchase and fulfill an order.  

These scenes depict the everyday reality in a Latin America, increasingly influenced by algorithms in the workplace. However, the boundary of jobs governed by algorithms raise pertinent questions. What debates are arising in the region? How are parliaments preparing to confront these changes? Is the trade union movement adequately equipped to address these changes? These questions, among others, will be explored throughout this text.  

A difficult photograph to take

The algorithms described earlier fail to reach the entire population. Challenges such street markets in retail, the digital divide that hinders widespread internet access and availability of quality devices, as well as the insufficient  funding for technological investments in small and medium-sized enterprises, have delayed the comprehensive integration of algorithmic intermediation across various sectors. Consequently, this has relegated the use of such algorithms predominantly to large companies capable of incorporating them for their own benefit. These phenomena are difficult to quantify and there are no figures that accurately describe them. For example, while there are statistics on informality in the region, revealing that in countries such as Bolivia and Paraguay, the informal economy constitutes nearly 80 percent (Chevalier, 2022), the total informality rate in the region is at 50 percent (International Labour Organization, 2016), however they fail to differentiate within informality. They do not delineate how much of the informal sector is self-employed and operated outside of the information and communication technology intermediation, such as informal street markets. Similarly, figures on the digital divide may be misleading, although they indicate that nearly 90 percent of the population in the region is connected through electronic devices (International Telecommunication Union, 2023), this statistic does not show the quality of these devices or their suitability for sustaining a digital infrastructure that allows workers to expand their labour capabilities.  

Despite the challenges in obtaining a precise picture of the situation, it can be asserted that technologically mediated work is divided into two types of management: algorithmic management and surveillance management. On the one hand, there is a growing presence of jobs managed through algorithms across the entire cycle of employment relationship. This includes, the initial stage of worker selection, tasks and resources allocation during the employment, and the evaluation and monitoring of job functions until the worker disengages from the position (Scasserra & Ottaviano, 2023). This algorithmic management is predominantly implemented by large transnational companies or "multilatinas" with the necessary resources to manage such systems, effectively replacing traditional supervisor roles like the foreman. 

Historically, large companies in the region held the majority of registered positions. However, recent years have witnessed a shift with retail and platform commerce using technological intermediation to engage workers in precarious working conditions. This trend operates without effective control by the State and falls into a legislative blind spot, leaving workers vulnerable and categorised as "self-employed, lacking the protections provided by existing laws. 

On the other hand, the situation in smaller and medium-sized companies changes drastically towards a "surveillance management" of workers in the region. Here, employees find themselves under constant scrutiny and control, facilitated by electronic devices and tracking technologies, and even monitoring through social media to see what kind of posts they do. It is already common to see cases of workers who are dismissed because of private posts on social media: do they post something political or trade-union inclined? Have they gone to a trip while telling they were sick? Some companies check the social media of their employees regularly to find this kind of information. Also, they are monitored through GPS or other surveillance systems. This type of situation has been documented in several cases before the courts, such as the case of traveling workers of the Fischer company in Argentina. Fischer had installed GPS devices in the cars of their employees to control their routes. The union took the case to court, which ruled in favor of the workers and the company had to remove the devices (Poder Judicial de la Nación, 2021). Another situation of surveillance management are workers who are directly harassed by instant messaging systems seeking to have them available 24/7. They contact workers any day, any time of the day just to check availability and ask them a small task in order to know their “level of commitment” to the work place. This phenomenon is widespread in the region, fostering perception that workers must be available all day to address the demands and inquiries of their workspace. A culture of perpetual availability is closely tied to the region’s social inequality, with power being exercised over the worker, highlighting the subordination to employers who expect them to be available at any timey, any day of the week. Similar to Europe, this fact has led to debates on the necessity to establish a complementary right to delineate the boundaries of the work day, such as the right to digital disconnection. This right has already been approved by parliaments in Argentina, Chile, Colombia, Ecuador, México, Paraguay, Dominican Republic and Uruguay. 

Legislation and rights that do not arrive

Almost instinctively, when confronted with such an absence of clear path forward, we turn to the State as the safeguard of rights, the promoter of public policies, and the societal organiser in the face of the uncertainty posed by an enigmatic future. However, the region is entangled in more pressing and immediate discussions, such as employment levels, access to essential goods, and urgent material needs. In this context, the debate around digitalisation and the impact of algorithms in workplaces appears distant and complex for States overwhelmed by agendas dominated by poverty and inequality.  

However, regional disparities are also evident in this regard. While certain countries have succeeded in advancing rights for their citizens, in others the debate is still in its early stages (Bordachar, 2022). There are nations within the region that are lagging behind with discussions on personal data protection and privacy laws, such as Paraguay (Marecos Gamarra, 2017). On the contrary, countries like Brazil have advanced debates on the impact of artificial intelligence on society and initiating projects to regulate it (Folha de São Paulo, 2023). One of the projects seeks to create a new organism in the state to control that ethics norms are fulfilled by systems and manage reparation in case there was a damage made. The discourse on labour rights in the digital era experiences ups and downs in the region due to its complexity and lack of comprehensive understanding. However, one regulatory aspect has made significant strides at the regional level, catalyzed by the COVID 19 pandemic: the home office law. It is the first time that legislation on the same subject has been passed almost concurrently across the region. The right to disconnect, constraints on the workday and the autonomy of working hours were regulated in almost every Latin American country, with similarities and differences. While some countries proposed legislation favorable towards workers (e.g. Argentina) putting trade unions in the center and giving them the right to negotiate working conditions with employers, others, like Chile and Ecuador, introduced legislative texts with somewhat confusing wording, that ended up favoring employers (Perdomo Ospina & Ottaviano, 2023) and in other cases like Uruguay, allowing the employee to negotiate directly with the employer.  

Surveillance-based management in work environments lacks specific regulations in the region, relying instead on jurisprudence that paves the way for interpretation based on each country’s legislative tradition. There have already been resounding cases where workers, subject to monitoring, have taken legal action to shed light on their situation, seeking to reverse surveillance technologies. The outcomes vary, with some achieving success and others experiencing limited impact. What is undeniable is the emerging awareness among workers that technology not only serves as a tool for surveillance but can also be used to expose employer misconduct against their workers. Increasingly prevalent are instances where workers use screenshots and recordings of disrespectful conversations as evidence to defend themselves against injustices and inequalities In the workplace.  

Regarding the influence of algorithms on workers management and the broader debate on artificial intelligence, the important role of the European Union and UNESCO in stimulating regional debates, is undisputable. UNESCO's principles on the ethics of artificial intelligence (UNESCO, 2021) and the organization's tireless effort to secure state endorsements and incorporate these principles into public policy have sparked to profound debates on the imperative for regulation. The recently approved EU AI act (European Parliament, 2023) imposes an agenda that is crucial for international debates. Indeed, from a Latin American perspective, the agenda seemed distant, complex and incomprehensible for a long time. However, it is gradually taking shape in the region, where is an increasingly awareness of the importance of establishing new regulatory frameworks for these new technologies. 

The expansion of technology companies in the region and the focus on international debates are underscoring the necessity to advance AI laws within parliamentary discussions. However, the question arises: will this be the time to include a labor chapter in these laws, or will they merely serve as overarching regulatory frameworks lacking specific provisions for the management of algorithms in the workplace? The role of the regional trade union movement is key to install such a need.  

The leading role of the Latin American trade union movement

The challenges arising in the labour sphere are putting the debate on the agenda of the trade union movement. Surveillance, hyper connection, automation and algorithms. -these four words sum up the issues that trade union leaders in the region almost inevitably confront. In this context, the trade union movement in Latin America is more alert than ever. Sometimes with a clear and steadfast direction, and at other times uncertain about the path ahead, but with a clear sense of alarm and mobilisation. It is evident that the issues described here are increasingly finding expression in collective bargaining, with the inclusion of clauses and demands related to these issues. Hypervigilance has become a central focus, empowering many unions to file complaints and using technological records to defend workers. However, algorithmic management remains a complex issue, particularly challenging to understand. In numerous countries across the region, organisation efforts on large platforms, especially in retail where workers are atomised and often remote in their homes and stores. However, there are promising developments in other cases. Major trade unions in many cities have started to organise workers, especially delivery workers, aiming to include them in collective bargaining agreements and giving them a sense of union membership, as is the case in Uruguay (Ministerio de Trabajo y Seguridad Social, 2020) and Argentina (SECZA, 2023). Platform workers lack effective representation and protective regulations, yet the discourse is advancing and is gaining momentum. Workers have organised themselves into unions that remain informal, but which strongly demonstrate the need for answers. Local courts have served as forum for conflicts, with many cases favouring the workers. Strikes and mobilisations have successfully put the issue on the agenda and workers' demands have gained notoriety. However, major unions are concerned and note the enormous challenge of taking sides in these struggles, as these issues invariably infiltrate their respective sectors. Despite these developments, the ongoing debate about the nature of algorithmic intermediation implies and how to regulate the black box of these systems remains a debate that finds no territory in which to develop. Indeed, the focus appears to be on the precariousness of employment rather than the enormous power imbalance that is generated by the opacity in decision-making regarding the labour trajectory of workers. 

Conclusions: Latin America can make a difference

Latin America is part of the developing world. Its economic and infrastructural backwardness reveals centuries of colonization and inequality. Despite these historical challenges, the region has not been passive in international geopolitics, it has stood out for its cultural identification, its capacity to generate natural and human resources, its market potential and its ancestral knowledge of the commons, among other things. These elements have collectively generated a dynamic digital society, full of companies that flourish in the heat of their own market logics. Therefore, “Multi-latinas” startups underscore this reality, accompanied by the social struggles. Workers are fighting actively for their rights, alongside programmers who, inspired by cooperative principles, looking for open source technological alternatives to the concentration of capital. Resistance is coming from both fronts, workers and designers of technology. What is missing is a political response to these needs. 

Discussions on essential regulations are currently underway. States are slowly awakening from their lethargy and are beginning to provide answers, albeit in incomplete form. Rather than passively waiting for solutions, the better approach is to proactively engage in understanding digital policy from the bottom up, raising the voice of trade unions, and advocating for the commons and collective rights over individual rights. What if we add to trade union demands economic rights over data for the communities that generated them? What if we seek to increase trade union power by granting collective rights over data to the organizations that represent workers? We need to work tirelessly on this agenda, which Latin Americans can understand and know how to carry forward. Latin American civil society can transform digitisation in the region for the benefit of all.