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Labor
Law
SYNOPSIS
A.
INDIVIDUAL LAW 14.101
1.
Employment Contract
14.105
2. Modalities of the Contract
14.106
2.1.
Fixed Term Contract 14.109
2.2.
Seasonal Contract 14.110
3.
Employment Law 14.111
3.1.
Eventual employment contract 14.112
3.2.
"Promoted" employment 14.113
4. Joint Liability 14.115
5.
Inventions 14.116
6.
Remuneration 14.118
6.1.
Annual Complementary Salary 14.122
7.
Change in employment form and terms 14.124
8.
Working Day 14.125
9.
Leaves of Absence
9.1.
Paid Leave of Absence
9.1.1.
Vacation 14.129
9.2.
Other Paid Leave of Absences
9.2.1
Obligatory holidays 14.133
10.
Suspensions of certain effects of the
employment
contract
due to illness or accidents 14.133
11. Lack of work or Force Majeure 14.136
12.
Other leaves of absence 14.137
13.
Women Work 14.138
14.
Transfer of employment contract 14.141
15.
Termination of employment contract
15.1.
Prior notice 14.145
15.2.
Employee’s resignation 14.147
15.3.
Parties’ mutual agreement 14.148
15.4.
Dismissal with a just cause 14.149
15.5.
Dismissal without cause or without a
just cause 14.150
15.6.
Force Majeure or Lack of or decrease
in work 14.151
15.7.
Retirement 14.152
15.8.
Employee’s death 14.153
15.9.
Employer’s death 14.154
15.10.
Dismissal due to marriage 14.155
16.
Statute of Limitations 14.156
17.
Special Regulations 14.157
18.
Small and Medium Size Companies 14.158
B.
COLLECTIVE LAW
1. Labor
Unions 14.159
2.
Employment collective conventions 14.167
3.
Collective Conflicts - Settlement and
Arbitration 14.170
4.
Preventive proceedings for Company in
crisis 14.172
C.
SOCIAL SECURITY
1.
Social Welfare Services 14.173
2.
Family Allowances 14.177
3.
Retirement and Pensions 14.178
A. INDIVIDUAL LAW
14.101
The
individual employment relationship is
governed by the so called
"Employment Agreement Law" No.
20,744 (Decree-law 390/74).
14.102
The employees exempt from its provisions
are: a) Employees of Federal, Provincial
or Municipal Public Administration, b)
Domestic service, c) Rural workers.
14.103
The law governs validity of the
agreement, the parties’ rights and
duties, whether the agreement was
entered into in Argentina or abroad as
long as it is fulfilled in Argentina.
14.104
The law consists of a protective
principle which may be summarized as
follows: a) In dubio pro operario:
(application of the most favorable rules
and conditions), b) Impossibility to
waive the rights established therein.
1.
Employment Contract
14.105
An employment agreement exists whenever
an individual undertakes to perform an
act or works or render services in favor
of or for another, by means of the
payment of remuneration.
2.
Modalities of the Contract
14.106
The agreement is entered into for an
undetermined period of time, considering
that at the beginning there is a test
period of three months, that must be
entered in a special book kept by the
employer as required by legislation in
force. Once the three-month period has
elapsed and provided that neither party
has rescinded the agreement, it becomes
an agreement for an undetermined period.
14.107
During the test period the parties may
rescind the agreement with no right to
compensation. During this period only
social security contributions and family
allowances must be made.
14.108
There are other contracting modalities
that must be expressly established in
writing at the time of execution of the
agreement or when the tasks or
activities to be performed do so
require.
2.1.
Fixed term Contract
14.109
This agreement may be entered into in
case of a determined work or a specific
task. It is in force during the agreed
term and it may be periodically renewed
up to a maximum of five years. A prior
notice of termination must be served
upon the relevant party and if
termination occurs after one year of
employment the employer must pay
compensation. Termination ante tempus
without cause entitles the employee to
receive compensation for damages.
2.2.
Seasonal Contract
14.110
This agreement is entered into when the
employment relationship takes place only
during certain periods of the year due
to the general course of business of the
company, and such relationship is to be
repeated every season pursuant to the
nature of the activity.
3.
Employment Law
14.111
Law 24,013 established a series of
contracting modalities that can be
summarized as follows:
3.1.
Eventual employment Contract
14.112
This agreement is entered into in order
to satisfy concrete results in relation
to extraordinary services determined
beforehand or extraordinary and
temporary demands, whenever a fixed term
may not be estimated for the termination
of the agreement. It also applies when
the relationship begins and ends with
the performing of a certain works, the
execution of an act or the rendering of
a service for which the employee was
hired. It may also apply in the case of
temporary substitution of employees of
the company that benefit from a leave of
absence or job reservation. For this
type of agreement "eventual service
companies" may also be used as long
as they are legally authorized.
3.2.
"Promoted" Employment
14.113
Law 24,013 created several promoted
contracting modalities. These modalities
include benefits for the employer such
as a reduction in the payment of social
security charges. They are subject to
several administrative requirements and
in case these are not fulfilled the
agreement becomes a fixed term one.
(Among these requirements the following
must be mentioned: they are authorized
by means of the employment collective
agreements, they must be in writing and
a copy must be submitted to the labor
union and registered before the Ministry
of Labor. They cannot exceed a
percentage of the permanent staff and
employer must refrain from collective
suspension or dismissals). They are for
a fixed and limited term.
14.114
Promoted contracting modalities are:
a)
Employment for a fixed term to encourage
employment. This agreement is entered
into between an employer and an worker
registered as unemployed in the
Employment Services Network, or who was
laid off from the public sector due to
administrative rationalization measures.
b)
Employment agreement for a fixed term to
launch a new activity. It is entered
into to render services at new premises
or a new production line at existing
premises.
c)
Employment for practice of young people.
It is entered into with young people up
to twenty five years of age who have
finished their university studies and
are applying for their first to enhance
their knowledge.
d)
Training - Employment agreement. It is
entered into with young people up to
twenty four years old who have no prior
studies and are looking for a first job
to acquire a theoretical and practical
training.
e)
Part-time. The employee undertakes to
render services for a certain number of
hours per day, week or month and this
number is lesser than the activities
common working hours for such period.
These employees may not work extra
hours, except in case of serious and
imminent danger for people or assets of
the Company.
f)
Special employment encouragement. This
modality is meant for workers over forty
years old, women, handicapped persons
and people who fought in the Malvinas
War, in order to create new jobs.
4.
Joint Liability
14.115
The law does not forbid intermediation
of contractors or subcontractors, but
the principal employer is jointly liable
for the obligations arising from
employment agreements, in particular for
those that perform work or render
service related to the normal and
specific activity of the company. In
addition, they are jointly liable for
the obligations related to Social
Security.
5.
Inventions
14.116
The employee is the owner of personal
inventions or discoveries even when he
has used elements that do not belong to
him.
14.117
Inventions that are the result of
industrial procedures, methods or
equipment of the company or of
experiments, research or improvement of
those already used, as well as
inventions obtained when the worker was
employed to such purpose, belong to the
employer.
6.
Remuneration
14.118
This is the valuable consideration that
the employee must receive as a
consequence of the employment agreement
and it must not be less than the minimum
salary (Pesos 200 per month).
14.119
It must be paid within the first four
working days of the following month to
salaried personnel; and within the next
three working days of the end of the
week or fortnight to those paid by day
or per hour.
14.120
Additional remunerations e.g. over time,
etc., must be paid within the same
payment periods.
14.121
No amount can be deduced, withdrawn or
compensated from salaries if it reduces
the amount to be paid except for legal
withholdings such as pension
contributions, tax duties, attachments,
and the like. In no case the withheld
amount may exceed 20% of remuneration.
6.1.
Annual Complementary Salary (Thirteen
month bonus)
14.122
The law established payment of an annual
complementary salary. It must be paid in
two semiannual installments: on June
30th and December 31st each year.
14.123
It represents a twelfth of the total
employee’s remuneration for each
semester and in case of dissolution of
the labor relation, whatever the cause,
this annual complementary salary must be
paid in proportion to the period worked.
7.
Changes in employment forms and terms
14.124
The employer is entitled to introduce
reasonable changes related to employment
form and terms, as long as they do not
alter the essential terms of the
agreement and do not impair the employee
materially or morally, if so, the
employee has the possibility of
considering himself dismissed without
cause.
8.
Working Day
14.125
Law 11,544 enacted in 1929 which was
regulated in 1933 and amended several
times established a working day of 8
hours or 48 hours per week. The night
shift is limited to 7 hours per day and
the work qualified as unhealthy by the
application authority to 6 hours.
14.126
These rules are not applicable to works
performed by direction or surveillance
employees, or performed "by
rotating shifts" or in case of an
accident occurred or imminent, or
urgencies in relation to machinery,
tools or equipment, force majeure only
when the work cannot be performed during
normal working hours.
14.127
Work from 1 p.m. on Saturday until
midnight on Sunday is prohibited, but
the Federal Executive Power may
establish exceptions. However, there are
some legal statutes and other
contractual provisions that allow
working on those days. Law 18,425
exempts from such prohibition
supermarkets, malls, food self-service
shops, retail shops, shopping centers
and the like. Law 21,660 established a
system of opening and closing time for
shops and of authorization to employ
staff on Saturdays after 1 p.m.
14.128
Overtime shall be paid with an increase
of 50%-100% for work on a national
holiday, Saturdays after 1 p.m. or
Sundays. There is a decree-law that
limits overtime to 3 hours per day, 48
per week and 320 annually.
9. Leaves of Absence
9.1.
Paid leave of absence
9.1.1.
Vacation
14.129
Employer must give the employee an
annual paid leave of absence from 14
running days to 35 running days
depending on the employee’s seniority.
9.2.
Other paid leave of absences
14.130
The following paid leave of absences
must be granted: son or daughter’s
birth (2 running days); marriage (10);
death of spouse or co-habitant, children
or parents (3); bother or sister’s
death (1); to sit for an exam pursuant
to authorized or official education
schedules (2 days per exam with a
maximum of 10 days each calendar year).
9.2.1.
Obligatory holidays
14.131
There are 10 days during the year
considered national holidays which are
paid and during which work is forbidden
in order to commemorate patriotic and
religious events.
14.132
There are other optional holidays that
the employee may grant such as Holy
Thursday for Christians, Jew’s New
Year and Forgiveness Day and the
Muslim’s New Year and the day after
the end of fast and Sacrifice Feast. If
the employee works he receives normal
salary. If the employer chooses not to
work he must be pay normal salary to the
employee anyway.
10.
Suspension of certain effects of the
employment
contract
due to illness or accidents
14.133
Illness or accidents not caused by work:
do not affect the employee’s right to
receive remuneration for a term of 3 to
6 months in the case of an employee
collecting no family allowances,
depending if his seniority is lesser or
more than 5 years. If the employee
collects family allowances the maximum
term is 6 and 12 months depending also
in same seniority.
14.134
If the maximum term expires and the
employee in not able to resume work, his
job must be kept open for one year
during which he receives no
remuneration.
14.135
If the illness or accident results in
absolute incapacity, the employer must
pay a compensation equal to that for
dismissal without cause.
11.
Lack of work or Force majeure
14.136
Employment relationship may be suspended
with just cause due to lack of or
reduction of work not caused by fault of
the employer, or due to disciplinary
reasons or to force majeure duly proved.
Suspensions may not exceed 30 days in
one year. They must be based on a just
cause notified in writing and for a
fixed term. Suspensions based on force
majeure may be extended up to 75 days in
one year and must begin with the
employees with less seniority and with
less family charges. Objection on the
part of the employee entitles him to
considered himself dismissed and claim
payment of severance compensation or
claim the payment of salaries not
received due to the suspension if he can
prove uncompliance of the conditions
established there in.
12.
Other leaves of absence
14.137
The employee must accept a leave of
absence when the employee is elected to
a municipal, provincial or federal job,
or as a representative of a professional
association of workers.
13.
Women Work
14.138
Maternity is protected by a prohibition
of working. This protection consists in
the 45 days before and 45 days after the
child’s birth. During this period the
employer must keep her job and she will
receive social security allowances in
lieu of salary.
14.139
Women are also protected for a period
seven and a half months before and after
the date of delivery. In case of
dismissal without proof of a cause not
related to maternity, in this period
women are entitled to receive a sum
equal to one year wages.
14.140
When a woman bears a child she may
choose: a) to continue with her job; b)
to rescind the agreement and receive a
quarter of the amount of compensation
for dismissal without cause; or c) to
remain in a waiting period of 3 to 6
months during which she is entitled not
to return to her job.
14.
Transfer of employment contract
14.141
When a going concern is transferred
whatever the title, including transfer
of the lease even on a temporary basis,
all obligations arising from an
employment contract are transferred to
the successor or buyer. Therefore, the
agreement continues with the successor
or buyer and the employee keeps his
seniority and the rights arising
therefrom.
14.142
Seller and buyer are jointly liable in
relation to any obligations arising from
the employment contract which existed at
the time of transfer and affected
seller.
14.143
An employee may consider his employment
contract terminated without cause if he
deems that due to the transfer he is
being adversely affected. This can take
place when his function, position or
employment is changed or in the case
that the division of the company’s
branches he is affected by a reduction
of responsibility.
14.144
The assignments of an employment
contract without transfer of the going
concern requires the express acceptance
in writing of the employee and assignor
and assignee are jointly liable for the
obligations arising from the assigned
relationship.
15.
Termination of employment contract
15.1.
Prior notice
14.145
An employment contract cannot be
terminated by the will of one of the
parties without prior notice to the
other, or otherwise, payment of
compensation. If a longer term has not
been established, the employee must
serve notice one month in advance. The
employer must serve notice one month in
advance if the employee’s seniority is
less than 5 years, otherwise two month
notice must be given. The party who
omits prior notice must pay an
equivalent amount to the remuneration
for the terms mentioned above. Prior
notice is in force from the first day of
the month following service of notice
made through an attesting mean (in
writing, telegram or letter with an
acknowledgment of receipt or notarial
notification).
14.146
Termination of employment contract may
occur due to the employee’s
resignation, parties’ mutual
agreement, dismissal with cause or
without cause, force majeure or lack of
or decrease of work, retirement or
employee’s death. In fixed term
contracts by expiration of the term.
15.2.
Employee’s resignation
14.147
Resignation must comply with the formal
requirement of a telegram with
acknowlegedment of receipt personally
sent by the employee or it must be
rendered before the competent
administrative authority.
15.3.
Parties’ mutual agreement
14.148
The agreement must registered before a
Notary Public or before a competent
judicial or administrative authority and
the employee must be present at such
act. An employment relationship may be
deemed terminated when the behavior of
the parties’ leaves no doubt with
regard to the termination of the
employment contract.
15.4.
Dismissal with a just cause
14.149
Upon failure by one of the parties to
fulfill the obligations arising from the
employment contract, the other may
terminate the employment relationship.
The failure must be so serious that it
makes it impossible to continue the
relationship. If the uncomplying party
is the employee he looses all rights to
severance pay.
15.5.
Dismissal without cause or without a
just cause
14.150
In the event of dismissal without cause
or without a just cause, the employer
must pay compensation equivalent to a
month salary per each year of work or
period exceeding three months. This
basis has a maximum that is the
equivalent to three times the monthly
amount of the average sum of all
remunerations established in the
collective agreement applicable to the
employee at the time of dismissal,
regardless time of service. (The
Ministry of Labor periodically publishes
these tables). In no case this
compensation can be lower than two
monthly salaries.
15.6.
Force Majeure or Lack of or decrease in
work
14.151
When dismissal is caused by force
majeure or lack of or decrease in work,
that is not the fault of the employer,
the employee is entitled to receive half
the compensation for dismissal mentioned
in point 14.150.
15.7.
Retirement
14.152
When the employee meets the requirements
to obtain his pension benefits, the
employer may notify his requirement that
he or she initiate the relevant
proceedings by issuing the certificates
and the necessary documents. Once the
benefit is granted or when a one-year
term from notification expires, the
relationship is terminated without
payment of compensation.
15.8.
Employee’s death
14.153
In the event of employee’s death his
heirs according to what is established
in the pension system law are entitled
to receive an amount equivalent to half
the compensation established for
dismissal without cause.
15.9.
Employer’s death
14.154
When employer’s legal or personal
conditions, his professional activity or
other circumstances have been the base
upon which the employment contract was
entered and without which it could not
continue, the employer’s death
terminates such relationship and the
employee is entitled to receive half the
compensation for dismissal without cause
15.10.
Dismissal due to marriage
14.155
Likewise, when she has notified the
intention to get married, she cannot be
dismissed during 3 months before or 6
months after getting married, and in
case of dismissal she is entitled to
receive remuneration during one year.
16. Statutes of limitation
14.156
Legal actions derived from credits
arising from individual labor
relationships, and in general from
employment collective agreements have a
statute of limitation of two years. A
claim before the administrative
authority interrupts the statute of
limitation but in no case for more than
six months.
17.
Special Regulations
14.157
In Argentina certain laws were enacted
that govern several activities such as:
airlines personnel, bank and insurance
employees, building and construction
workers, private chauffeurs, private
teachers, musicians, porters and staff
of buildings for rent, nurses and male
nurses, gastronomy workers, cold-storage
industry, soccer players, dentists and
pharmacists, hair dressers, professional
journalists, telegraphists, domestic
service, domicile workers, maritime
workers, harbor workers, rural workers,
sugar harvest workers, vineyards and
fruit plantation contractors, public
transport and commercial travelers with
specific rules and regulations.
18.
Small and Medium Size Companies
14.158
In March 1995 law 24,467 was enacted
establishing rules for employment
agreements and labor relationships in
Small and Medium Size Companies (PYMES).
A company small qualifies with a staff
of no more than 40 employees and with
annual billing lower than the amount
established for each sector by the
Special Control Commission. At present
annual billing, not taking into account
V.A.T., is $2,500,000 for the Rural
Sector; $5,000,000 for the Industrial
Sector; $3,000,000 for the Commercial
Sector and $4,000,000 for the Service
Sector.
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